INTRODUCTION.................................................................................................................................................................................................................................... 1

From Confederation to Union.....................................................................................................................................................................................................1FEDERALIST # 3: THE SAME SUBJECT CONTINUED (JAY)..................................................................................................................................................1FEDERALIST # 9: THE UNION AS A SAFEGUARD AGAINST DOMESTIC FACTION AND INSURRECTION (HAMILTON)...........................................................1FEDERALIST # 15 – THE INSUFFICIENCY OF THE PRESENT CONFEDERATION TO PRESERVE THE UNION (HAMILTON).......................................................1

Federalism.................................................................................................................................................................................................................................... 1

Federalism and Separation of Powers........................................................................................................................................................................................1FEDERALIST # 45: THE ALLEGED DANGER FROM THE POWERS OF THE UNION TO THE STATE GOVERNMENTS CONSIDERED (MADISON).......................2FEDERALIST #47 - THE PARTICULAR STRUCTURE OF THE NEW GOVERNMENT AND THE DISTRIBUTION OF POWER AMONG ITS DIFFERENT PARTS (MADISON)..........................................................................................................................................................................................................................2FEDERALIST # 48 - THESE DEPARTMENTS SHOULD NOT BE SO FAR SEPARATED AS TO HAVE NO CONSTITUTIONAL CONTROL OVER EACH OTHER (MADISON)..........................................................................................................................................................................................................................2FEDERALIST # 51 - THE STRUCTURE OF THE GOVERNMENT MUST FURNISH THE PROPER CHECKS AND BALANCES BETWEEN THE DIFFERENT DEPARTMENTS (MADISON).................................................................................................................................................................................................3

Congress and the President.........................................................................................................................................................................................................3FEDERALIST # 52: THE HOUSE OF REPRESENTATIVES (MADISON)....................................................................................................................................3FEDERALIST # 62 - THE SENATE (PROBABLY MADISON)....................................................................................................................................................3FEDERALIST # 68 - MODE OF ELECTING THE PRESIDENT (HAMILTON)........................................................................................................................3FEDERALIST # 69: THE REAL CHARACTER OF THE EXECUTIVE (HAMILTON).............................................................................................................4

JUDICIAL POWER.................................................................................................................................................................................................................................4

Federal Courts and Judicial Review..........................................................................................................................................................................................4FEDERALIST # 78 – THE JUDICIARY DEPARTMENT (HAMILTON)...................................................................................................................................4MARBURY V. MADISON:.....................................................................................................................................................................................................4

THE AUTHORITATIVENESS OF SUPREME COURT DECISIONS - ARE JUDICIAL INTERPRETATIONS BINDING ON THE EXECUTIVE BRANCH?..............................5THOMAS JEFFERSON............................................................................................................................................................................................................5ANDREW JACKSON..............................................................................................................................................................................................................5ABRAHAM LINCOLN............................................................................................................................................................................................................5

The Case or Controversy Requirement: The Political Question Doctrine.............................................................................................................................6BAKER V. CARR:.................................................................................................................................................................................................................6

CONGRESSIONAL SEATING DECISIONS.......................................................................................................................................................................................6POWELL V. MCCORMACK...................................................................................................................................................................................................6

TREATY ABROGATION AND EXECUTIVE POWER OVER FOREIGN AFFAIRS...............................................................................................................................7GOLDWATER V. CARTER.....................................................................................................................................................................................................7

LEGISLATIVE CONDUCT OF IMPEACHMENT PROCEEDINGS........................................................................................................................................................7NIXON V. US:......................................................................................................................................................................................................................7

Case or Controversy Requirement: Advisory Opinions, Standing to Sue, Mootness & Ripeness.......................................................................................7LUJAN V. DEFENDERS OF WILDLIFE:..................................................................................................................................................................................8

GENERALIZED GRIEVANCES.....................................................................................................................................................................................................8FROTHINGHAM V. MELLON.................................................................................................................................................................................................8FLAST V. COHEN.................................................................................................................................................................................................................9U.S. V. RICHARDSON...........................................................................................................................................................................................................9SCHELESINGER V. RESERVISTS COMMITTEE TO STOP THE WAR.........................................................................................................................................9

CONGRESSIONAL POWER TO CONFER STANDING.......................................................................................................................................................................9FEC V. AKINS..................................................................................................................................................................................................................... 9

LEGISLATIVE STANDING...........................................................................................................................................................................................................9RAINES V. BYRD................................................................................................................................................................................................................. 9

MOOTNESS AND NON-RIPENESS.............................................................................................................................................................................................10ROE V WADE.....................................................................................................................................................................................................................10

CONGRESSIONAL POWER...................................................................................................................................................................................................................10

The Necessary and Proper Clause............................................................................................................................................................................................10MCCULLOCH V. MARYLAND.............................................................................................................................................................................................10

THE POLITICAL SAFEGUARDS OF FEDERALISM.......................................................................................................................................................................12THE ROLE OF STATES IN FEDERAL ELECTIONS......................................................................................................................................................................12

U.S. TERMS LIMITS, INC. V. THORTON.............................................................................................................................................................................12

The Commerce Power (Early Cases)........................................................................................................................................................................................13GIBBONS V. OGDEN:......................................................................................................................................................................................................... 13

JUSTIFYING NATIONAL REGULATION OF LOCAL ACTIVITIES ON THE BASIS OF THEIR RELATIONSHIP TO INTERSTATE COMMERCE.........................................13U.S. V. E.C. KNIGHT CO...................................................................................................................................................................................................13

ORIGINS OF THE “SUBSTANTIAL ECONOMIC EFFECTS” APPROACH........................................................................................................................................14HOUSTON E. & W. V. UNITED STATES (SHREVEPORT RATE CASE):.................................................................................................................................14

THE “STREAM OF COMMERCE” THEORY................................................................................................................................................................................14SWIFT & CO. V. U.S. –......................................................................................................................................................................................................14

NATIONAL “POLICE” REGULATION..........................................................................................................................................................................................14IN MARSHALL V. MCCULLAH...........................................................................................................................................................................................14CHAMPION V. AMES (LOTTERY CASE)..............................................................................................................................................................................14

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HIPOLITE EGG CO. V. U.S.................................................................................................................................................................................................14HOKE V. U.S..................................................................................................................................................................................................................... 15

CHILD LABOR CASE................................................................................................................................................................................................................15HAMMER V. DAGENHART (CHILD LABOR CASE):.............................................................................................................................................................15

THE COURT THREATENS THE NEW DEAL...............................................................................................................................................................................15RR RETIREMENT BOARD V. ALTON RR CO......................................................................................................................................................................15SCHECHTER POULTRY CORP. V. U.S.................................................................................................................................................................................15CARTER V. CARTER COAL.................................................................................................................................................................................................15

FDR’S COURT-PACKING PLAN................................................................................................................................................................................................15

Commerce Power (Modern Cases)...........................................................................................................................................................................................16THE DECLINE OF LIMITS ON THE COMMERCE POWER FROM 1937-1995................................................................................................................................16

NLRB V. JONES & LAUGHLIN STEEL................................................................................................................................................................................16UNITED STATES V. DARBY................................................................................................................................................................................................16

JUDICIAL DEFERENCE TOWARD EXERCISE OF THE COMMERCE POWER.................................................................................................................................16WICKARD V. FILBURN.......................................................................................................................................................................................................16

USING THE COMMERCE POWER FOR SOCIAL ENDS: THE BAN ON DISCRIMINATION IN PUBLIC ACCOMMODATIONS IN THE CIVIL RIGHTS ACT OF 1964.......17HEART OF ATLANTA MOTEL V. U.S.................................................................................................................................................................................17KATZENBACH V. MCCLUNG..............................................................................................................................................................................................17

USING THE COMMERCE POWER TO CONTROL CRIME...............................................................................................................................................................17PEREZ V. U.S.....................................................................................................................................................................................................................17

The Limits of the Commerce Power.........................................................................................................................................................................................17UNITED STATES V. LOPEZ.................................................................................................................................................................................................17

THE DISTINCTION BETWEEN ECONOMIC AND NONECONOMIC ACTIVITIES...............................................................................................................................17UNITED STATES V. MORRISON..........................................................................................................................................................................................17

WHERE WE ARE NOW – CONGRESS HAS LIMITS BECAUSE OF TEXT OF CONSTITUTION............................................................................................................18

Congressional Power to Regulate States..................................................................................................................................................................................18THE RISE AND FALL OF STATE CLAIMS OF IMMUNITY FROM FEDERAL REGULATION..............................................................................................................18

COYLE V. OKLAHOMA (1911)...........................................................................................................................................................................................18U.S. V. CALIFORNIA (1936)..............................................................................................................................................................................................18NEW YORK V. UNITED STATES.........................................................................................................................................................................................18NATIONAL LEAGUE OF CITIES V. USERY..........................................................................................................................................................................18HODEL V. VIRGINIA SURFACE...........................................................................................................................................................................................18GARCIA V. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY.....................................................................................................................................19

THE PROTECTION OF STATE AUTONOMY AFTER GARCIA........................................................................................................................................................19NEW YORK V. UNITED STATES.........................................................................................................................................................................................19PRINTZ V. UNITED STATES................................................................................................................................................................................................20

THE LIMITS OF THE STATE AUTONOMY PRINCIPLE AFTER GARCIA, NEW YORK AND PRINTZ................................................................................................20RENO V. CONDON..............................................................................................................................................................................................................20

Additional Congressional Powers.............................................................................................................................................................................................21THE TAXING POWER AS A REGULATORY TOOL.....................................................................................................................................................................21

CHILD LABOR TAX CASE (BAILEY V. DREXEL FURNITURE CO.)......................................................................................................................................21U.S. V. KAHRIGER (1953).................................................................................................................................................................................................21

THE SPENDING POWER AS A REGULATORY DEVICE..............................................................................................................................................................21UNITED STATES V. BUTLER..............................................................................................................................................................................................21

THE COURT’S CURRENT APPROACH TO CONDITIONAL FEDERAL GRANTS TO STATES.............................................................................................................22SOUTH DAKOTA V. DOLE..................................................................................................................................................................................................22

THE WAR, TREATY, AND FOREIGN AFFAIRS POWERS............................................................................................................................................................22WOODS V. CLOYD W. MILLER CO....................................................................................................................................................................................22

DOMESTIC REGULATION W/ WAR POWER..............................................................................................................................................................................22MISSOURI V. HOLLAND.....................................................................................................................................................................................................22THE BRICKER AMENDMENT CONTROVERSY.....................................................................................................................................................................23REID V. COVERT................................................................................................................................................................................................................23

THE FOREIGN AFFAIRS POWER OF CONGRESS..........................................................................................................................................................................23ZSCHERNIG V. MILLER (1968)..........................................................................................................................................................................................23

FEDERAL RESTRICTIONS ON STATE POWER.....................................................................................................................................................................................23

The “Dormant” Commerce Power (Early Cases)...................................................................................................................................................................23GIBBONS V. OGDEN...........................................................................................................................................................................................................23WILSON V. BLACK-BIRD CREEK:......................................................................................................................................................................................23COOLEY V. BOARD OF WARDENS:....................................................................................................................................................................................24

The “Dormant” Commerce Power (Modern Cases)...............................................................................................................................................................24FACIAL DISCRIMINATION........................................................................................................................................................................................................24

PHILADELPHIA V. NEW JERSEY:........................................................................................................................................................................................24CHEMICAL WASTE MANAGEMENT V. HUNT (1992)..........................................................................................................................................................24OREGON WASTE SYSTEMS V. DEPARTMENT OF ENVIRONMENTAL QUALITY (1994)........................................................................................................24CAMPS NEWFOUND V. HARRISON:....................................................................................................................................................................................24FOSTER-FOUNTAIN PACKING CO. V. HAYDEL...................................................................................................................................................................25

PROTECTIONIST PURPOSE AND EFFECT...................................................................................................................................................................................25BALDWIN V. SEELIG..........................................................................................................................................................................................................25

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HENNEFORD V. SILAS MASON...........................................................................................................................................................................................25BACCHUS IMPORTS V. DIAS..............................................................................................................................................................................................25HUNT V. WASHINGTON STATE APPLES ADVERTISING......................................................................................................................................................25H.P. HOOD V. DU MOND..................................................................................................................................................................................................25

FACIALLY NEUTRAL LAWS AND PIKE BALANCING (NEUTRAL LAWS THAT UNDULY BURDEN INTERSTATE COMMERCE)....................................................25PIKE V. BRUCE CHURCH, INC............................................................................................................................................................................................26SOUTH CAROLINA STATE HIGHWAY V. BARNWELL.........................................................................................................................................................26SOUTHERN PACIFIC CO. V. ARIZONA................................................................................................................................................................................26BIBB V. NAVAJO FREIGHT LINES......................................................................................................................................................................................26BENDIX AUTOLITE CORP V. MIDWESCO ENTERPRISES.....................................................................................................................................................26

“MARKET PARTICIPANT” EXCEPTION.....................................................................................................................................................................................26SOUTH-CENTRAL TIMBER V. WUNNICKE..........................................................................................................................................................................26HUGHES V. ALEXANDRIA SCRAP CORP.............................................................................................................................................................................27REEVES V. STAKE..............................................................................................................................................................................................................27WHITE V. MASS. COUNCIL OF CONSTRUCTION EMPLOYEES.............................................................................................................................................27

The Privileges & Immunities Clause of Article IV..................................................................................................................................................................27UNITED BUILDING & CONSTRUCTION TRADES COUNCIL V. MAYOR AND COUNCIL OF CAMDEN....................................................................................28SUPREME COURT OF NEW HAMPSHIRE V. PIPER...............................................................................................................................................................28

Congressional Preemption and Consent..................................................................................................................................................................................28PACIFIC GAS & ELEC. V. STATE ENERGY RESOURCES CONSERVATION & DEVELOPMENT..............................................................................................28

FIELD PREEMPTION (IMPLIED PREEMPTION)...........................................................................................................................................................................28RICE V. SANTA FE ELEVATOR...........................................................................................................................................................................................28FLORIDA LIME V. PAUL.....................................................................................................................................................................................................29CROSBY V. NATIONAL FOREIGN TRADE COUNCIL............................................................................................................................................................29LEISY V. HARDIN (1890)...................................................................................................................................................................................................29PRUDENTIAL INSURANCE V. BENJAMIN.............................................................................................................................................................................29METROPOLITAN LIFE INS. V. WARD (1985)......................................................................................................................................................................29

SEPARATION OF POWERS...................................................................................................................................................................................................................29

The Limits on Executive Power................................................................................................................................................................................................29YOUNGSTOWN SHEET & TUBE CO. V. SAWYER [STEEL SEIZURE CASE]:.........................................................................................................................30

EXECUTIVE AUTHORITY OVER FOREIGN AND MILITARY AFFAIRS........................................................................................................................................30UNITED STATES V. BELMONT............................................................................................................................................................................................30DAMES & MOORE V. REGAN............................................................................................................................................................................................30

PRESIDENT, CONGRESS AND WAR POWERS.............................................................................................................................................................................31

The Non-Delegation Doctrine...................................................................................................................................................................................................31WHITMAN V. AMERICAN TRUCKING ASSOCIATIONS.........................................................................................................................................................31

Congressional Attempts to Evade Federal Lawmaking Procedures......................................................................................................................................32INS V. CHADHA................................................................................................................................................................................................................ 32CLINTON V. NEW YORK....................................................................................................................................................................................................33

Congressional Interference with Executive Powers................................................................................................................................................................33APPOINTMENT OF EXECUTIVE OFFICERS................................................................................................................................................................................33

BUCKLEY V. VALEO..........................................................................................................................................................................................................34REMOVAL OF EXECUTIVE OFFICERS.......................................................................................................................................................................................34

BOWSHER V. SYNAR..........................................................................................................................................................................................................34FETTERING THE EXECUTIVE REMOVAL POWER.......................................................................................................................................................................34

MEYERS V. U.S. (1926).....................................................................................................................................................................................................34HUMPHREY’S EXECUTOR V. UNITED STATES....................................................................................................................................................................35

INDEPENDENT COUNSEL.........................................................................................................................................................................................................35MORRISON V. OLSEN.........................................................................................................................................................................................................35

INTERBRANCH APPOINTMENTS................................................................................................................................................................................................35MISTRETTA V. UNITED STATES.........................................................................................................................................................................................35

Executive Privileges & Immunities...........................................................................................................................................................................................36UNITED STATES V. NIXON.................................................................................................................................................................................................36

PRESIDENTIAL IMMUNITY FROM CIVIL DAMAGES LIABILITY...................................................................................................................................................37NIXON V. FITZGERALD......................................................................................................................................................................................................37CLINTON V. JONES............................................................................................................................................................................................................ 37

IMPEACHING THE PRESIDENT:.................................................................................................................................................................................................37

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INTRODUCTION

FROM CONFEDERATION TO UNIONBenefit of Federal system with a division between federal and state: Tailoring of laws, efficiency of laws. Justice Brandies – “states laboratories for experimentation” Separation of powers, reduced excessive concentration of powers.

o By dividing, power is separate and weakened.

Negative – expensive running both state and federal governments.

FEDERALIST # 3: THE SAME SUBJECT CONTINUED (JAY) John Jay begins by stating that for a number of years, the general consensus among the people is that the best government for the nation would be a national government, invested with sufficient power "for all general purposes." He then says the more that he carefully examines the issues, the more convinced that the people are right. For him, the greatest issue concerning government is the safety of the people and in this essay he will argue that a "cordial Union under an efficient national Government, affords the best security that can be devised against hostilities from abroad."

Jay argues that wars are proportional to the just causes to go to war, and so by examining whether a United States would have fewer causes versus the separate states, you can discern which form of government would most likely preserve the peace of the land. Jay then tells his readers that America has already formed treaties with six nations, all of which except for Prussia are maritime nations and could readily injure the United States. It is of paramount importance, therefore, to maintain these relationships with these countries, especially considering the importance they hold to commerce in the young nation. To him, it seems that "one national government" could observe the laws of the nation "more perfectly and punctually" than thirteen separate state governments. First, for Jay, one government has available the "best men of the country," in effect, pooling the best men in each state, city, county, etc and utilizing them for one common cause. Thus, the administration, the counsel, and the judicial decisions will be "more wise" in a united government, and create a "safer" situation for foreign affairs to be conducted. Next, Jay argues that treaties in the national government will be argued and executed in the same manner, not in thirteen different ways. In addition, because each state has different desires and wants, persuasion that is not truly for their common good might influence them more than the nation as a whole, and a national government is never subject to making treaties based on local circumstance. Jay also believes that empirical evidence proves his point: while not one Indian war has been provoked by the national government, several states have provoked wars, leading to the "slaughter of many innocent inhabitants."

In sum, "not only fewer just causes of war will be given by the national Government, but it will also be more in their power to accommodate and settle them amicably." Jay concludes by citing an example from history. In 1685, Genoa, a small state, offended Louis XIV and was forced to send their chief magistrate and four of their senators to personally apologize and receive his terms. Jay poses the question would Spain or Britain or "any other powerful nation" had to undergo the same humiliation?

FEDERALIST # 9: THE UNION AS A SAFEGUARD AGAINST DOMESTIC FACTION AND INSURRECTION (HAMILTON)

FEDERALIST # 15 – THE INSUFFICIENCY OF THE PRESENT CONFEDERATION TO PRESERVE THE UNION (HAMILTON) United States has reached the "last stage of national humiliation," because of large debts, territories in the possession of a foreign power, a lack of

military, a lack of money, inability to navigate on the Mississippi River, lack of commerce, lack of respect by foreign powers, decrease in value of property, and unavailability of credit. because of "national disorder, poverty, and insignificance."

FEDERALISM Const. creates a division of power between the federal government and the states, known as federalism Before the Const., Congress had little power because they were dependant on the States to carry out their orders Const. gives fed. gov. power over the people directly, so Congress doesn’t need States to carry out their laws States have equal representation in the Senate (2), proportional representation in the House (population) Senate makes sure that small states wouldn’t be bullied by larger states in Congress Electoral College = # of House Reps. for a state + # of Senators for a state The Electoral College system favors smaller states State Legislatures originally chose electors; now there is a general election for electors Federal law trumps state law; the Supremacy Clause in Art. VI says that when fed. and state laws are in conflict, fed. law trumps state law The fed. gov. only has the powers given to it in the Const. (enumerated powers) Art. I, § 8 lays out the specific powers granted to Congress §8: Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense. But all

above should be uniform across US. See constitution for more powers….

The fed. powers are few and defined, while the state powers are numerous and indefinite The fed. gov.’s powers are more external while the state powers are more internal

FEDERALISM AND SEPARATION OF POWERS Distinctions from Articles of Confederation to Constitution:1. Power to enact legislature directly on the citizens of the U.S. In the past it was only states that could take action. In the Constitution they bypass the states to pass laws

o more efficient to have federal officials pass and put into effect laws instead of having intermediaries.

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o If federal government was powerless to enforce the requirements that it passed, then state governments would have too much authority (the case with the Articles of Confederation).

2. 2 levels of government acting at the same time in the same way – federal and state system. Supremacy Clause - Article 6, clause 2 – the constitution, laws and treaties made under the constitution shall be the supreme law of the land.

o Judges in every state are bound to the constitution – if there is a conflict between state law and supreme law – supreme law prevails. If there is an unconstitutional law passed by congress it is not the supreme law of the land.

o If congress exceeds its authority – it doesn’t count. Fed. gov. is separated into 3 branches: legislative, executive, judicial Separation of powers creates a system of checks and balances and makes it less likely that there will be an abuse of powers A law must be passed by House and Senate, and signed by Pres. (or passed again by Congress if Pres. vetoes) S. Ct. can review and invalidate laws if they go against the Const.

Addition of Amendments to the constitution – allowed by congress whenever 2/3 of both houses shall deem it necessary.o Ratified by ¾ of the states through their legislatures.

FEDERALIST # 45: THE ALLEGED DANGER FROM THE POWERS OF THE UNION TO THE STATE GOVERNMENTS CONSIDERED (MADISON)

FEDERALIST #47 - THE PARTICULAR STRUCTURE OF THE NEW GOVERNMENT AND THE DISTRIBUTION OF POWER AMONG ITS DIFFERENT PARTS (MADISON) James Madison begins this paper by telling his readers that he is going to examine a specific principle of republican government, "separation of powers." One of the principal objections to the constitution is that it violates this important principle. Its opponents claim that the three branches of government are not sufficiently separate and independent and that power is too unevenly distributed. It is feared that the new government will collapse, and that liberty will be threatened.

Madison agrees with those who place great importance on the separation of powers, especially on the point that an unequal division of power could result in the loss of liberty. If one branch has too much power, it does not matter how many men govern or how they obtain office. Too much power in one branch of government "is the very definition of tyranny." If these claims were true, Madison says that no other arguments would need oppose it. He, however, is convinced that this charge cannot be supported. The question is; how separate should each branch of government be?

Montesquieu, the French political writer, formulated this principle of government. He took the British constitution as his model‹which he called, "the mirror of political liberty." However, the most casual glance at that constitution reveals that the branches of the British government are far from totally separate or distinct. For example, the English king acts in a legislative capacity when he enters into treaties with foreign sovereigns: once treaties are signed they have the force of legislative acts. The English king not only appoints and removes judges; he frequently consults them. The judicial branch, then, acts in an advisory capacity to the executive branch. The legislative branch advises the king on constitutional matters and, in cases of impeachment, the Houses of Lords assumes judicial power. From these few facts, Madison infers that Montesquieu, when he wrote that "there can be no liberty where the legislative and executive powers are united in the same person . . . or, if the power of judging be not separated from the legislative and executive powers," did not mean that the powers should remain absolutely separate or that each branch should not have any control over the other branches.

Madison continues that if one looks at the state constitutions, there is no state in which the branches of government are absolutely separate and distinct. The state constitutions do not violate the separation of power doctrine set forth by Montesquieu, Madison concludes, and neither does the United States Constitution.

FEDERALIST # 48 - THESE DEPARTMENTS SHOULD NOT BE SO FAR SEPARATED AS TO HAVE NO CONSTITUTIONAL CONTROL OVER EACH OTHER (MADISON) Separation of Powers is a further safeguard – but power cannot be completely separated. The Principle of republican government does not imply that the three branches out to be completely separate and independent.

o The very opposite is true. In order that this doctrine can operate effectively, each branch of government must have sufficient power to impose some restraints over the other two.

The Constitution grants to each branch certain exclusive powers. These powers should not be interfered with; however, power not carefully controlled tends to expand.

Experience with our state governments has shown that theoretical checks written into the state constitutions are inadequate, particularly in preventing the growth of legislative power. The most serious mistake made by the framers of republican forms of government is that they concerned themselves exclusively with the problem of too much executive power. They forgot that legislative tyranny is as evil as executive tyranny.

In the proposed government, it is the legislative branch that is most likely to abuse power. o More power, both unrefined and unlimited, has been granted to it than to the other two branches. In addition, the legislative branch

controls the money and has the greatest influence in the determination of salaries paid to government employees. Such a situation invites corruption.

Presidential power, on the other hand, is simpler in nature, and the Constitution clearly defines and limits it. The same is true of judicial power. Any attempt by these two branches to infringe upon the Congress would be quickly detected and blocked.

Madison is saying that Constitution will make it difficult for the government to interfere with peoples rights.

Argument at the time against the Constitution was that it did not contain a Bill of Rights: Federalists argued that this was not necessary b/c government wouldn’t have that much power.

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Important Rights were freedom of press – Federalists argued that there was no power in the constitution to take away the freedom of the press, therefore there would be no danger.

o Federalists argued that if they add a provision for freedom of press then it would imply that congress had the power in the first place.

Danger would be that they would never be able to enumerate all the rights retained by the people and therefore any Bill of Rights would be incomplete.

Anti Federalists – bought Federalist argument but Amendments were added to appease them.

Bill of Rights - 9th and 10th amendments were specifically added to address power of government over rights. In the time of the drafting of the Constitution – they looked at Rights and Power as a flipside.

o Powers of Congress = powers to invade individual rights unspecified retained by the people.

FEDERALIST # 51 - THE STRUCTURE OF THE GOVERNMENT MUST FURNISH THE PROPER CHECKS AND BALANCES BETWEEN THE DIFFERENT DEPARTMENTS (MADISON) “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the

portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people.

CONGRESS AND THE PRESIDENT Article 1 – Creates the Congress = House & Senate Legislative power goes to congressArticle II – Creates President of the U.S. executive powerArticle III – Creates Supreme Court (Maybe lower courts, but only if Congress wishes.) Judicial power of the U.S.

Definition of the powers: 1. Legislative Power – to make general law, forward looking and prospective 2. Executive Power – power to administer and enforce - some general enforcement powers – but overall more specific. Not the last word. (Article II

– “faithfully execute the law”)3. Judicial Power - interpret and apply the law in individual cases. Specific and backward looking.

Article III, Section II – 9 categories of cases and controversies to which the judicial power extends.

FEDERALIST # 52: THE HOUSE OF REPRESENTATIVES (MADISON) Term & Elections - 2 questions to consider about elections:

1. whether biennial elections will, in this case, be safe (every 2 years)2. whether they be necessary or useful

Who Votes: Electors – Constitution leaves it to states to set up their own qualifications. To be eligible to vote for house elections – you have to be eligible to vote in state elections.

FEDERALIST # 62 - THE SENATE (PROBABLY MADISON) Elected every 6 years by state legislation. (2 Senators/state) Equal representation in the Senate protects the sovereignty of all the states, thus ensuring that the new government will not abolish the state

governments. It also means that a bill, which must be passed by both houses before it becomes a law, will reflect the wishes of the people (represented

by the House) and the states (represented by the Senate). Senate can also approve treatise – whereas the House cannot.

The senate with the president has the Appointment Power. Madison begins this paper explaining that it will examine four points concerning the Senate; the qualification of the senators, the method by which they are selected; equal representation in the Senate; and the number of senators and the six-year term.

Two differences exist between the qualifications of senators and representatives: senators must be older and must be citizens of the United States longer. Senators serve longer and need a broader knowledge of government affairs, particularly in the area of foreign relations; consequently, the framers thought they should be older. Appointment by the state legislatures, rather than election by the people, is desirable for two reasons: first, this type of appointment assures that the Senate will consist of a select group of men, and the appointment by the states will provide a link between the states and the national government.

FEDERALIST # 68 - MODE OF ELECTING THE PRESIDENT (HAMILTON) Duty is put upon men chosen from the states for this specific purpose.

o Those who are intelligent and thoughtful enough to make the big decision. Choice of several to form the electoral college will make less waves than choice of only one chosen by the public. Electors are chosen in each state and assemble and vote in that same state. (now all states hold elections for electors for president, so you have

smaller states with more influence in presidential elections – a president can win with a majority of the electoral votes, but not based on popular votes.)

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o NOW – all states but 2 – have a winner take all system (maximizes the influence of the state, more impact)… who ever gets the most votes in the state, takes all the electoral votes. 2 states have proportional winner).

No senator, representative or other person holding a place of trust or profit under the US can be an elector. o They will not be corrupto And they will be all spread out so they can’t corrupt each other.

Each state will chose their electors based on the number of senators and representatives of that state. They each vote in their home state and send the vote to the center of government where the votes are counted.

Do not vote in one place - “this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time and in one place.

The person with the majority of votes wins. o If no one has a majority – the House of Reps out of the 5 men with the highest vote – pick the president.

Article I, Section I, Clause II - no state can have fewer than 3 electors for president.

FEDERALIST # 69: THE REAL CHARACTER OF THE EXECUTIVE (HAMILTON) President is to nominate, and with the advice and consent of the Senate, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the US established by law, and whose appointments are not otherwise provided for in the constitution.

JUDICIAL POWER

FEDERAL COURTS AND JUDICIAL REVIEW Judicial Power - interpret and apply the law in individual cases. Specific and backward looking.

Article III, Section II – 9 categories of cases and controversies to which the judicial power extends.

Article III: In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, that SC shall have original jurisdiction. In all other cases, they have appellate jurisdiction.

Article VI – Supremacy Clause – Clause that allows Federal displacement of State laws.

FEDERALIST # 78 – THE JUDICIARY DEPARTMENT (HAMILTON) Hamilton makes a lot of the arguments that Marshall adopts in Marbury v. Madison – Hamilton laughs at anyone who questions that life tenure is the most valuable advances in the theory of representative government.

o Permanency in office frees judges from political pressures and prevents invasions on judicial power by the president and Congress. The judicial branch of government is by far the weakest branch.

o The judicial branch posses only the power to judge, not to act, and even its judgments or decisions depend upon the executive branch to carry them out. Political rights are least threatened by the judicial branch. On occasion, the courts may unfairly treat an individual, but they, in general, can never threaten liberty.

Court cannot enforce their own decisions.

MARBURY V. MADISON: Marbury sued Secretary of State to force delivery of commission to Marbury so that he could serve as a justice of the peace; Marbury sought a writ of mandamus; Court looked at Judiciary Act of 1789 (dealing with writ of mandamus) and determined that it was at odds with Art. III, § 2 of the Const.; Court invalidated Judiciary Act because it was unconst. Marbury said that the Court has the authority and duty to declare laws unconst. and refuse to enforce them The process for amending the Const. is very hard (Art. V); we don’t want Congress to be able to pass laws that aren’t in accord with the Const. to

be able to circumvent amending In Marbury, Marshall says judges take oath to follow Const. and it is the job of the Court to say what the law is; Marshall is making the point that

the Court, not Congress, has the duty to make the determination if a law is in conflict with the Const. Critics of Marbury say that nowhere in the Const. is it stated that courts, and not Congress, ought to decide when a law conflicts with the Const.

1st major opinion issued by the court about the power of judicial review = Whether or not a law is unconstitutional Marbury and some of his colleagues went to the Supreme court to compel Jefferson’s secretary of state James Madison, to deliver their

commissions. Marbury is asking for a writ of mandamus – an order to an official to perform a routine or ministerial duty that they are supposed to perform in

their office. o This is a routine duty because there is little discretion to be exercised.

John Marshall was the Secretary of State and the Chief Justice (for 1 month) – Marshall wrote this opinion. o There is nothing in the constitution that says you can’t serve in the executive and judicial branch. There is something

precluding you from being in the legislative and judicial branch. Special concern about keeping legislative power distinct from judicial power. As well as legislative power from

executive power. Founders thought the legislative branch was the most dangerous branch of government, most likely to abuse

authority. – that’s why there’s the incompatibility clause and veto power. HOLDING: The court does not order Madison to hand over the document because – they do not have jurisdiction over this case. This court only has appellate jurisdiction.

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Article III, §2 – o This case is not an appellate case because it first came to court in the Supreme Court and an action like this is not within the

jurisdiction of the Supreme Court according to the Constitution. There is no original jurisdiction. (only original jurisdiction over foreign diplomats in the U.S., not a category in which a state is a party)

Now there is a contradiction between the statute that allows for writs of mandamus to be issued and the constitution which says no in this case. o Conflict b/w federal statute and provision of the constitution.

The constitution is either a superior, paramount law, unchangeable by ordinary means, or is it on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

Constitution prevails, it binds the legislature as well as binding courts.

Pp 10 – “it is also not entirely unworthy of observation that in declaring what should be the supreme law of the land the constitution is first mentioned; and not the laws of the U.S. generally, but those only which shall be made in pursuance of the constitution, have that rank.

o Law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. o Must follow the constitution instead of the law…

ALTERNATIVE ARGUMENTS: Alternative Congress can argue that because they are a representative body, they represent the views of the people – they can claim their view to be

just as good as the SC’s and they have democratic entitlement because they are elected by the people and the courts aren’t. Doesn’t work, according to Marshall because we have a written constitution – it is written down so that no one can change it at will. Congress has to swear upon their oath of office, and supremacy clause – Not to pass an unconstitutional law. Courts are expected to exercise this judicial review in the process of examining the constitution. (such as president is to exercise it’s veto,

executive power and Congress is to use it’s legislative power.)

Famous Quote: “It is emphatically the province and duty of the judicial department to say what the law is” because it has to in the course of deciding the case.

THE AUTHORITATIVENESS OF SUPREME COURT DECISIONS - ARE JUDICIAL INTERPRETATIONS BINDING ON THE EXECUTIVE BRANCH?

THOMAS JEFFERSON Letter to Abigail Adams, Sept. 11. 1804

o Explaining his pardons of those convicted during the Adams administration under the Sedition Act of 1798, which criminalized defaming federal officials by bringing them into “contempt or disrepute” and which had been deployed by appointees of Adams’s Federalist party against members of Jefferson’s Republican party.

o The Judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the Constitution. That instrument meant that its co-ordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for their own sphere of action, but for the Legislature and Executive also, in their spheres, would make the judiciary a despotic branch.”

ANDREW JACKSON. Veto Message, July 10, 1832

o “Even if the opinion of the SC covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. It is as much the duty of the House of Reps., of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority of Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.

ABRAHAM LINCOLN. Speech during the Lincoln-Douglass Senatorial Campaign, Oct. 1858

o Doesn’t necessarily believe that Supreme Court’s ruling is the supreme law of the land – “We propose so resisting it as to have it reversed if we can, and a new judicial rule established upon this subject.”

First Inaugural Address, March 4, 1861o “The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be

irrevocable fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

Some Presidents have said that they too have power to interpret Const. Jefferson, Jackson, and Lincoln have disagreed with Court decisions involving Const., yet no President has ever directly defied a Court ruling

Cooper v. Aaron: the interpretation of the Const. by the Court is the supreme law of the land

What happens to a statute when the Supreme Court strikes it down? It stays in the statute books – Congress can repeal it.

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If the law is enforced in another case, the Court can continue to hold their opinion and follow the Constitution.Supreme can overrule itself. Regarding nature of Judicial Rulings

o Easier for congress to correct a mistake – With constitutional interpretation it is a lot harder – you would need to amend the constitution and that doesn’t happen too much.

Court gets to decide for themselves what the constitution means – disregarding whether or not Congress thinks it’s constitutional.

If there is a statute on the books, and the Supreme Court disagrees – the President can continue to bring cases based on the statute and the SC can continue to throw it out – until maybe one day the SC can overrule itself.

Presidents have taken a stand, but have never defied a court order in a particular case – they can disagree. If you allow all 3 branches to interpret the constitution- you get extra constitutional protection. If you just rely on SC you only get what they say.

- Greater constitutional protection by having all branches take part in interpretation.

THE CASE OR CONTROVERSY REQUIREMENT: THE POLITICAL QUESTION DOCTRINE The Court will not decide matters that are reserved by the Const. for other branches of gov. The court doesn’t have an easy principle or guideline that it uses to determine if a matter is a non-justiciable political question

BAKER V. CARR: Tenn. voters claimed that voting apportionment violated their equal protection rights; the Court found that the constitutionality of apportionment schemes is not a political question; this case paved the way for Court’s “one person, one vote” ruling Held that the complaint's allegations of a denial of equal protection presented a justiciable constitutional cause of action upon which plaintiffs were

entitled to a trial and a decision. The nonjusticiability of a political question is primarily a function of the separation of powers.

In Baker, the Court listed a series of factors; at least one of these factors must be present for it to be a non-justiciable political question. The following are prominent issues of any case held to involve a political question that are nonjusticiable:

1. Commitment to another branch: text in the Const. committing the issue to another branch of gov.2. Lack of standards: a lack of judicially discoverable and manageable standards for resolving the issue3. Unsuitable policy determination: impossibility of deciding without making a policy determination beyond the Court’s discretion4. Lack of respect for other branches: impossibility of ruling without undermining other branches5. Unusual need for unquestioning adherence to a political decision already made (Political decision already made: decision previously made by

gov.)6. Multiple pronouncements: potential for various departments of government ruling on the same issue)

The most important factors looked at are (1) the commitment to another branch, (2) lack of standards, and (3) need for a single pronouncement

Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question’s presence.

Guaranty Clause – claims to involve those elements which define a “political question” and for that reason and no other, they are nonjusticiable. Equal Protection Clause – judicially administrable standard – 1 person 1 vote.

o More judicially manageable, no textually demonstrable commitment to the other branches.

This case is important in restating the political question doctrine – political question doctrine primarily a function of the separation of powers. o Foreign relationso Validity of enactments

The Political Question Doctrine Since Barker v. Carr (37-38)

CONGRESSIONAL SEATING DECISIONS

POWELL V. MCCORMACK Powell had been elected to the House, but the House failed to seat him because of his wrongdoings; Powell sued, and House said that Art. I, § 5 said that House shall be the judge of qualifications of its members; Powell said that this only meant that House could set out “standing qualifications”, which are age, residency, and citizenship; Court agreed with Powell and said that this issue was justiciable Court found the controversy justiciable. Warren’s majority opinion concluded that Art. I, §5, was “at most a “textually demonstrable

commitment” to Congress to judge only the qualifications expressly set forth in the Constitution.” (age, residence and citizenship) Therefore, this strand of the political question doctrine did not bar adjudication of Powell’s claim. Nor could the court find “other considerations”

to justify a finding of nonjusticiability. “Our system of government requires that federal courts on occasion interpret the constitution in a manner at variance with the construction given

the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts’ avoiding their constitutional responsibility. Nor are any other formulations of a political question “inextricable from the case at bar.”

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TREATY ABROGATION AND EXECUTIVE POWER OVER FOREIGN AFFAIRS

GOLDWATER V. CARTER Question here was if President had authority to terminate a treaty without approval of the Senate; the Court found the issue non-justiciable because they said that U.S. needs to have a single voice when it comes to foreign relations. SC insisted that the case presented a nonjusticiable political question. The need for a unified voice, as seen in Goldwater, has been another reason the Court has used to hold that an issue is a non-justiciable political

question He claimed the issue was political b/c “it involves the authority of the President and the conduct of our country’s foreign relations,” arguing that

the controversy “should be left for resolution by the Executive and Legislative Branches” since the Constitution “is silent as to the Senate’s participation in the abrogation of a Treaty.”

Claiming that the question “must surely be controlled by political standards,” he noted that this was “a dispute between coequal branches of our government, each of which has resources available to protect and assert its interests, resources not available to private litigants outside the judicial forum.”

LEGISLATIVE CONDUCT OF IMPEACHMENT PROCEEDINGS

NIXON V. US: Nixon, a fed. judge, was impeached; a Senate committee held hearings and then presented info. and their recommendation to the rest of the Senate; Nixon claimed that the committee procedure violated the requirement in the Const. that Senate has to “try all impeachments”; Court held that this was a non-justiciable political question because the text of the Const. gives the Senate the sole power to try all impeachments; court determined that Const. committed impeachment power to another branch and they could not make a ruling Controversy is nonjusticiable – involves political question – where:

o there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department court must interpret the text in question and determine whether and to what extent the issue is textually committed.

o Or lack of judicially discoverable and manageable standards for resolving it. Look to Art. I §3, cl. 6 – to determine the scope of authority conferred upon the Senate by the Framers regarding impeachment.

o “Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the U.S. is tried the chief justice shall preside: And no Person shall be convicted without the concurrence of 2/3 of the Members present.”

Nixon argued that the procedure used by the senate is not correct – They should have a trial – and instead only did a committee hearing the evidence.

If the judiciary reviews congress’s impeachment proceedings, then the check on the judiciary by congress is useless. o BUT – then Judiciary should be allowed to check the checkers.

The court in this case is deciding who decides: o Judicial self-restraint imposedo Under rules of the constitution.

This court says: In the case of the president – the chief justice actually resides in the senate. Odd that the chief would be sent there if there was to be judicial review.

o What if the President was impeached and then asked for judicial review? Then SC holds option to review – but doesn’t have to.

This is not a broad policy decision – it is individual rights… Supreme court tells us in Nixon – they say it is a political question because of the language of the constitution “sole power to try in the senate” and

there is an inability to second guess it.

CASE OR CONTROVERSY REQUIREMENT: ADVISORY OPINIONS, STANDING TO SUE, MOOTNESS & RIPENESS To qualify a case or a controversy, a matter must be concrete and non-hypothetical, as affirmed by longstanding federal practice barring issuance

of merely advisory opinions. o It must also involve parties claiming an injury personal and concrete to themo It must arise neither too late or too soon for judicial resolution, as made clear in doctrines of mootness and ripeness.

The Rule Against Advisory Opinions1. An early example : earliest of all nonjusticiability doctrines stems from the court’s refusal to issue “advisory opinions” – opinions on the legality

of executive or legislative action that did not involve an actual “case”. George Washington asked the SC for advice and they responded: that they could not offer an opinion because of the idea of checks and balances.

o If the court was to give advice to the president and then the president didn’t follow their advice = it would diminish the standing of the Supreme Court. Their opinion should be the last word.

Ban on Advisory Opinions – starting point on the case or controversy question. You can’t have an abstract hypothetical questions submitted to the supreme.

o Modern era – the standing requirement is implemented to uphold the principle of real cases.

No Advisory Opinions because: There is no live controversy and

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party asking for the advice might not take the advice judges would be involved in making the law and then construing the constitutionality.

Courts cannot give advisory opinions; there needs to be a true case or controversy for the court to rule President Washington asked Court for an opinion on the ongoing war between France and England; the Court declined to give an answer Courts are passive and only decide things in hindsight; courts do not give advice on future events Plaintiff must show that he suffered actual or imminent injury as a result of the conduct of the defendant to be able to bring the suit Plaintiff must assert his own legal rights and interests and cannot rest his claim on the legal rights of another branch of gov.

Standing to Litigate Doctrine of Standing – under which federal courts scrutinize the parties bringing suit to ensure that they have concrete and particularized interest in

the case. Related to both the political question doctrine and the rule against issuing advisory opinions.o Some aspects of this doctrine arise form Article III’s case or controversy requirement; the court has classified others as matters of

self-imposed prudence.

Standing requirement usually keeps two types of cases out of court: Non-individualized harm: cases in which the harm complained of by the plaintiff is no different than that suffered by a large group of people Third parties’ rights: cases where the rights claimed to be violated are those of third parties

If a plaintiff is suing as a taxpayer and saying that his taxes are being spent in a way that violates the Const., the taxpayer must show a “nexus” between taxpayer’s status and the claim sought to be litigated

LUJAN V. DEFENDERS OF WILDLIFE: Plaintiffs challenge fed. action that will possibly endanger species abroad; when gov. says they have no standing, they claim that they have in the past, and will in the future, visit these animals abroad to observe and study the animals; Court holds that there is no standing because the plaintiffs didn’t show actual or imminent harm requirement; the harm was too speculative because there were only “someday” intentions to travel to abroad

Irreducible constitutional minimum of standing contains 3 elements (Constitutional Standing Requirements): (1) Personal Injury - the plaintiff must have suffered an “injury in fact” – an invasion of a legally-protected interest which is

a. concrete and particularized and (specific injury, different than those of the general public)b. actual or imminent, not conjectural or hypothetical.

(2) Fairly Traceable to the Government - There must be a causal connection between the injury and the conduct complained of – the injury has to be “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some 3 rd party not before the court.

(3) Redressability – (Injury must be caused by the challenged action) It must be likely, as opposed to merely speculative, that the injury will be “redressed by a favorable decision”. Redressability refers to the ability of the court to fashion relief that will resolve the problem

a. if redressability depends on 3rd parties not before the court is not redressable. b. If the court can’t be sure that the injury is redressable – then it is purely an advisory opinion. And no advisory opinions are

allowed.

Congressional Conferral of Standing: In this case – the court rejects a congressional attempt to authorize standing.

o “any person may commence a civil suit on his own behalf (A) to enjoin any person including the U.S. and any other government instrumentality or agency, who is alleged to be in violation of any provision of this chapter.”

o Animals can’t sue so congress wants to give them some protection. Citizen suits allowed by congress – because they may be more diligent and vigilant.

BUT this court finds that Congress is not supposed to supervise the executive. The supreme court doesn’t want it’s judgment second guessed by congress or the president.

If there is not a concrete case – congress can transform a case and authorize standing – transfer from the executive the power to supervise the law.

If the controversy ends before the end of the case, the case is not decided because it is mooto The controversy must extend throughout the all stages of the case for the case not to be mooto One exception are cases dealing with pregnancy because cases cannot always be completed within 9 months

Ripeness is when a case is brought too early; the issue is premature and court will not decide it Mootness is analogous to redressibility in the sense that there must be actual relief that the plaintiff can obtain Ripeness is analogous to the injury requirement because there must be an actual or imminent injury to the plaintiff in order to sue

GENERALIZED GRIEVANCES

Court has long declined to adjudicate constitutional claims at the behest of a plaintiff who is merely one of millions of taxpayers or citizens interested in resolving constitutional doubts about governmental

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FROTHINGHAM V. MELLON Court refused to entertain a taxpayer’s action to enjoin the secretary of the treasury from making conditional grants to state programs “to reduce maternal and infant mortality.” Fed. taxpayer brings suit claiming funding for state programs to help infant mortality is unconst.; Court has hostile view towards suits brought by taxpayers and holds that there is no standing to sue; Court said that the interest is shared by millions of others and the plaintiff’s interest is minute and indeterminable Court held unanimously that the plaintiff had “no such interest in the subject-matter, nor is any such injury inflicted or threatened, as would enable

her to sue.” The opinion stated that the interest of a federal taxpayer in the monies of the treasury is “shared with millions of others is comparatively minute

and indeterminable; and the effect upon future taxation, of any payment out of the funds, too remote, fluctuating and uncertain.” Frothingham takes us back to the separation of powers. Courts cannot supervise other branches in what they do.

FLAST V. COHEN Court held that a taxpayer may challenge the constitutionality of fed. taxing if there is a “logical nexus between the status of the taxpayer and the claim” Exception to the ban on taxpayer standing - The Flast decision is an exception to the hard line rule of Frothingham that generally most suits

brought by taxpayers won’t have standing Taxpayers attacked on Establishment clause grounds a federal statute granting aid to religions schools. The decision reasoned that the bar to taxpayer standing should be lowered in claims that “allege that congressional action under the taxing and

spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power,” and read the Establishment Clause as one such provision.

The requisite nexus will be found if: It is shown that the statute relies on Congress’ power under the Taxing and Spending Clause (Art. I, § 8) The challenged statute violates specific constitutional limitations imposed on the Taxing on Spending power, not simply that the statute is

generally beyond the powers of Congress under Art. I, § 8

U.S. V. RICHARDSON Court rejected as excessively generalized grievance claims of citizens and taxpayers. Held that a taxpayer did not have standing to claim that a law keeping CIA expenditures secret violated Article I, §9, cl. 7, of the Constitution,

requiring that “a regular Statement of Account of the Receipts and Expenditures of all public Money shall be published from time to time,”.

SCHELESINGER V. RESERVISTS COMMITTEE TO STOP THE WAR Members of Army Reserves sued to challenge Reserve membership of Congressman; no person can be in Congress and a member of Army at same time; no standing here because Court will not recognize standing on the part of individuals acting as citizens; relying on citizenship for standing doesn’t show the individualized injury-in-fact requirement needed Held that past and present members of the armed forces Reserves lacked standing to challenge the Reserve membership of certain members of

Congress as violating the incompatibility clause, the clause in Art. I, §6, cl. 2 stating that “no person holding any office under the U.S. shall be a Member of either House during his continuance in the Office.”

CONGRESSIONAL POWER TO CONFER STANDING

FEC V. AKINS The court by a vote of 6-3, held that a group of voters had standing to challenge the failure of the Federal Election Commission to treat the American Israel Public Affairs Committee (AIPAC) as a “political committee” subject to certain reporting and disclosure requirements under federal election law, and to seek information about AIPAC’s membership that they claimed would help them evaluate candidates for public office who had received AIPAC support. Breyer – rejected any claim that the lawsuit involved a nonjusticiable “generalized grievance”: “whether styled as a constitutional or prudential

limit on standing, the court has sometimes determined that where large numbers of Americans suffer alike, the political process, rather than the judicial process, may provide the more appropriate remedy for a widely shared grievance.

o Such an obstacle appears in cases where the harm at issue is not only widely shared, but is also of an abstract and indefinite nature. o But their association is not invariable, and where a harm is concrete, though widely shared, the court has found “injury in fact”. o Voting is a basic political right – sufficiently concrete and specific .

Voters have an injury in this case – although it is widely shared, it is concrete enough to give rise to standing.

The laws are general public interest laws – and who if anyone can sue to enforce them (only the executive)

LEGISLATIVE STANDING

RAINES V. BYRD Case involved a challenged to the constitutionality of the Line Item Veto Act of 1966 by 4 Senators and 2 Congressmen who had voted against its passage in the 104th Congress. The act provided that the president could “cancel” certain items appropriated for expenditure in enacted legislation, and that Congress could undo the cancellation only by the passage of a “disapproval bill” signed by the President or reenacted by 2/3 of each House over his veto.

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SC Held – that the legislators “have no standing to bring this suit. Appellees claim that their votes on future appropriations bills will be less ‘effective’ than before.

Their conclusion neither deprives Members of Congress of an adequate remedy (since they may repeal the Act or exempt appropriations bills from its reach), nor forecloses the Act from constitutional challenge (by someone who suffers judicially cognizable injury as a result of the Act’)”

Not a proper case for judicial resolution. Senator Byrd - the mere existence of the Line Item Veto Act injured them as legislators and so they brought suit.

o Congress uses this tool all the time, they bundle together a number of spending items and send it to the president (i.e.) – and before the line item veto law – the president had 2 options: veto the whole bill, or sign the whole bill.

With line item veto – congress allows the pres. To cancel certain line items. Byrd argues that the fact that he could veto a line item could injure him in his legislative capacity.

o In a later state the SC found this act as unconstitutional.

Should the SC have allowed Byrd to have standing in this case? o He argued that the bill diminished his power. o NO STANDING - But - there is no actual controversy – it appears to be an abstract controversy. Almost appears to be an advisory

opinion request. The court waited because of Standing – the court is policing itself. When it denies standing or Justiciability it refrains itself from deciding the case

at the present time.

The court takes a strict approach to Justiciability because: Functionality – live litigants with concrete injuries and facts, allows the court to frame the decision and decide on the narrow facts instead of a

broad pronouncement. Practicality & Theoretical Power & Self Preservation power – don’t want to encroach on the authority of the other branches – they are interfering

with legislative and executive powers. They may also be undermining their own authority – judicial review is an action of necessity, for a particular case – not in the abstract. Way for the court to preserve its own role and avoid encroaching other roles.

MOOTNESS AND NON-RIPENESS

The mootness and ripeness limits on adjudication pertain to the timing of lawsuits. o Mootness cases – involve litigants who clearly had standing to sue at the outset of the litigation

The problems arise from events occurring after the lawsuit has gotten underway – changes in the facts or in the law – that allegedly deprived the litigants of the necessary stake in the outcome.

A case is moot when changing circumstances developing after the initiation of the lawsuit have ended the controversy, so that the court no longer confronts a live dispute.

o Ripeness Doctrine – seeks to prevent premature adjudication; it involves situations where the dispute is insufficiently developed and is instead too remote or speculative to warrant judicial action.

A case is not ripe when it is brought too soon, when the parties have not yet reached an eyeball-to eyeball confrontation.

Mootness Doctrine – requires that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. Court has treated the doctrine as an aspect of the Article III case or controversy requirement. Yet the court has recurrently relaxed the mootness barrier and found a number of exceptions to it: “The different kinds of harm which

may prevent a case from being held moot include:o a continuing harm to the plaintiff; o the likelihood of future recurrence of past harm, either to the plaintiff personally or to the group he represents; o and the probability that some of the cases arising in the future will evade judicial review.

ROE V WADE Classic example of mootness exception – cases that are “capable of repetition yet evading review”.

Mootness doctrine labors under the need to reconcile Art. III requirements with practical and equitable problems of preventing parties from manipulating the courts.

Ripeness Doctrine – typical problem of ripeness arises from situations where the problems of contingencies and uncertainties as to the facts are most prominent, and the courts are most likely to insist on a clearly defined record to assure informed and narrow decision making. Ripeness rulings may rest on Art. III case or controversy grounds, but are sometimes based on discretionary, remedial or prudential grounds.

CONGRESSIONAL POWER

THE NECESSARY AND PROPER CLAUSE The Power of Congress: Congress has enumerated powers in the constitution – US Cont. Art. I, §8 Plan was to give congress enumerated and therefore limited federal powers with the residual powers of government reserved for the states and the

people. o 10th Amendment – power delegated to the states and the people.

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MCCULLOCH V. MARYLAND Maryland makes Bank of U.S. pay a tax to operate in Baltimore; Bank was chartered by Congress; there are two questions in the case: (1) Does Congress have power to create a bank (2) Can Maryland tax the bank?; Court holds that Congress has power to charter the bank under the Necessary and Proper Clause of Art. I, § 8 and that Maryland cannot tax the bank because it interfered with the exercise of a valid federal activity Necessary and Proper Clause says that Congress can do anything that is necessary and proper to carry out its enumerated powers; Court said that

necessary can mean convenient, helpful, etc. Court will not strike down a congressional action so long as Congress has employed a means which is not prohibited by the Const. and which is

rationally related to objectives that are themselves within the enumerated powers As long as Congress is doing something to accomplish the objects entrusted to it, the Court will not strike down the law The court reversed the decision to uphold the tax on the Bank of the United States and held that the tax was unconstitutional because the states had

no power to burden the operations of the constitutional laws enacted by Congress. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to

that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.  The act to incorporate the Bank of the United States is a law made in pursuance of the Constitution, and is a part of the supreme law of the land.  The power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the

objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power, is found in the structure of the government itself. In imposing a tax the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation. 

The people of all the states have created the general government, and have conferred upon it the general power of taxation. The people of all the states, and the states themselves, are represented in Congress, and, by their representatives, exercise this power. When they tax the chartered institutions of the states, they tax their constituents; and these taxes must be uniform. But, when a state taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control. 

Federal statute establishing the bank and a state statute taxing the bank – which do you follow? If MD can tax the bank, it can tax it out of existence. Assumption that the laws conflict –

(1) 10th Amendment – division of power – congress can’t just pass any federal law and displace state law. It has to be within congress’ power, and therefore constitutional.

(2) Article 6 – Supremacy Clause – tells us that certain federal laws are the supreme laws of the land - this constitution, and laws made in pursuance thereof are the supreme law of the land.

Constitution tells us that the Constitution are the supreme law and Laws made by congress and pursuant to the constitution are also the Supreme law of the land.

Therefore unconstitutional laws made by congress are not the supreme law of the land.

(1) Does Congress have the power to incorporate the bank? Court says that although in US Cont. Art. I, §8, cl. 18 there is no specific power to incorporate a bank – this section is a way of implementing

other powers. Way for congress to execute power that are specifically granted. Enumerated Power to tax, regulate commerce, borrow money, raise and support armies and navies – allows congress to create a bank.

The creation of the Bank is a way for congress to facilitate some of its enumerated powers. Congress gets to decide what is “necessary and proper” –

o But the court is not giving congress a blank check. “Let the end be legitimate, let it be within the scope of the constitution….. o The Court says that is has to be consistent within the ends of the constitution.

Congress could adopt measures under the pretext of executing these powers – o Congress can pursue these goals (enumerated) by whatever means necessary as long as they are proper. They have to further the goals –

but the means can’t be a pretext for adding new goals. (the goals are set forth in the constitution), can only add means, not goals.

Other factors that go into constitutional interpretation: (How does the Court discern the answer to the questions in this case?) (1) Look to the text of the constitution – (2) Historical Practice - Put weight that the very 1st congress passed a similar bill – they thought the constitution gave congress this power.

This is important because there was consensus in society that this was acceptable. If the 1st congress engaged in a certain practice – that’s evidence of its constitutionality – a lot of the people in the first

congress were the drafters of the constitution. Strong evidence of its constitutionality.

In the Absence of the “Necessary and Proper Clause” – congress would have still had the power. o Enumerated powers

Marshall upholds the bank but goes out of his way to say that congress does not have unlimited power under the constitution. o Power still has to be necessary and proper, reasonably adapted to the end, congress cannot under the pretext of its powers, pass any

laws not entrusted to the government.

(2) Can MD tax the operations of the bank? The bank is created by valid federal law, which is supreme law of the land and the power to tax is the power to destroy – and the state can’t destroy

an entity of Federal law. If MD taxes the bank, it raises the cost of doing the business with the bank and therefore impacts everyone nationally. MD has no power to tax everyone because not everyone can vote in MD. Discriminatory tax singling out the Bank of the US is unconstitutional.

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Any interference with Congress’s valid federal program is unconstitutional.

Bank eventually falls to the Jackson veto – but the Marshall principle of federal power held.

THE POLITICAL SAFEGUARDS OF FEDERALISM Marshall treated the scope of congressional power in McCulloch as a justiciable constitutional question. Wechsler – famous legal writer – The house, the senate and the president are the actors who are responsive to states.

o Anyone of the actors can stop a law that states really don’t like. Good protection built into the system. By design a protection of federalism.

Circumstances have changed since Wechsler’s article – the senate is no longer appointed by state legislature. States no longer appoint electors, people do.

Therefore – the inference is that because of these safeguards courts should not protect state power in the federal system, court should differ to congress and the president. If they think they have power – the courts should accept that.

o “Thus the court is on weakest ground when it opposes its interpretation of the Constitution to that of Congress in the interest of the states, whose representatives control the legislative process and, by hypothesis, have broadly acquiesced in sanctioning the challenged Act of Congress.”

Choper – like Wechsler – claimed that “numerous structural aspects of the national political system serve to assure that states’ rights will not be trampled, and the lesson of practice is that they have not been.”

o court should “explicitly hold that it will not pass on constitutional questions concerning the reach of national authority versus state’s rights”.

At time of founding fathers there was a sentiment that restricting federal power preserved individual rights.

9th and 10th Amendments are designed to respond to Bill of Rights – Individual Rights debate. The idea that Rights and power are the flip sides of a coin.

o If congress has certain powers, then the people lack that right.

THE ROLE OF STATES IN FEDERAL ELECTIONS

U.S. TERMS LIMITS, INC. V. THORTON Arkansas amended their state const. to place term limits on Arkansas members of Congress; Qualifications Clause in Const. sets out qualifications for Congress; Court found that the term limits would be inconsistent with the Qualifications Clause; the Court struck down the term limits and found that they would undermine the uniformity and national character of Congress that the framers sought to ensure

Arkansas claimed they had the power to do this from the 10th Amendment, but the 10th Amendment only allows states to retain the powers they had before the Const., and the power to add qualifications for federal elections was not an “original power”

Petitioners argue that the 10th amendment and the principle of reserved powers require that States be allowed to add such qualifications. This court disagrees for 2 reasons:

(1) The power to add qualification is not within the “original powers” of the states, and thus is not reserved to the states by the 10 th Amendment.

(2) Even if some states possessed some original power in this area, we conclude that the framers intended the Constitution to be the exclusive source of qualifications for members of Congress, and that the framers thereby “divested” States of any power to add qualifications.

10th Amendment could only reserve that which existed before. And Constitution did not originally give them this power – therefore they can’t do it.

Justice Story – “the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them. No state can say, that it has reserved what it never possessed.”

DISSENT: Thomas, Rehnquist, O’Connor, Scalia “The Federal Government and the States thus face different default rules; where the Constitution is silent about the exercise of a particular power –

that is, where the constitution does not speak either expressly or by necessary implication – the Federal Government lacks that power and the States enjoy it. These basic principles are enshrined in the 10th Amendment.”

OVERVIEW: Majority suggests that states can’t add qualifications unless the constitution allows. Dissent says that constitution sets minimum qualifications and states can add on.

Constitution didn’t create the states. The states created/ratified the constitution.

Q. What are the Consequences of this decision to federal safeguards of federalism theory? Court’s should defer to congress in its interpretation of federal powers and not try to protect states interests so much, because states are protected

by the federal government thought house, senate, president. A. This decision may undermine the theory – because states can’t put limits on who can represent them in congress.

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Default rule here goes to the federal government – states cannot interfere with qualifications although constitution is silent about it.

States possess reserved/residual authority – the authority not granted to the federal government. Congress is a government of limited/enumerated powers as enumerated in constitution.

Powell v. McCormack said that Congress couldn’t add qualifications for membership in the House or Senate; this case said that states can’t add qualifications either

THE COMMERCE POWER (EARLY CASES) In Interpreting the Constitution look at the following: Text – look at the text itself. Reasonable meaning of the words. Intra-Textualism – how the text relates to other provisions of the constitution. How the word defined in other areas of the constitution. Founders Views – (framers [drafters] & ratifiers) History/historical events – events that shape, ie – previous documents Historical Practice – how the constitution was originally interpreted at the beginning, gives an insight into the meaning at the time. Effect of Changed Circumstances – how it affects the constitution. Judicial Precedent – take previous rulings into account, although court can overrule itself.

o Art. I, §8, cl. 3 – Textual Interpretation of power conferred on congress by the power of the constitution: Regulate Commerce Among the Several States

Commerce Clause in Const. gives Congress the power to regulate commerce with foreign nations, among the several states, and with Indian tribes The goal of this is to keep channels of commerce open between states and make sure there are no irregularities in terms of commerce among the

states

The Interpretation of the Commerce Power from 1824 to 1936

GIBBONS V. OGDEN: NY state legislature granted Ogden a monopoly to operate steamboats between NY and NJ; Gibbons began operating steamboats between NY and NJ and his boats were federally licensed; Ogden sued to force Gibbons to stop; Court found that the federal statute was valid and trumped the NY grant (Supremacy Clause); Gibbons was allowed to run his boats In Gibbons, Court took a broad view of commerce power by saying that Congress could legislate with respect to all commerce that concerns more

than one state; commerce was no just buying and selling, but all commercial intercourse Gibbons argued that the NY monopoly was an intrastate matter, but the Court said that Congress could regulate matters occurring within a state as

long as the activity had a commercial connection with another state Which law should prevail, NY Law or Federal Law?

o Supremacy Clause – laws under the constitution are the supreme law of the land. o Asks whether the federal statute was made in pursuance of the constitution and then it is supreme. If not, state law is free to govern.

Does congress have authority to license Gibbons to operate a steam boat in NY waters? Chief Justice Marshall began his opinion with an examination of the scope of the commerce power underlying the federal statute: “the subject to

be regulated is commerce; and to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. …..Commerce, undoubtedly, is traffic, but it is something more – it is intercourse.

It describes the commercial intercourse between nations, and parts of nations, in all its branches and is regulated by prescribing rules for carrying on that intercourse. This includes navigation of waters between states as an important part of commerce.

o Here there is commerce between 2 states – it is “among the states” according to Art. I, §8, cl. 3.o In licensing steam boat operators – congress has regulated the commerce.

Competition is better for the economy, rather than monopoly – they have regulated by authorizing competition. Power to regulate commerce lies in the congress and is regulated by the constitution. In this case both could operate but neither could exclude the other. Congress’ power is not exclusive, federal law is supreme, but it leaves state law in place as long as it doesn’t contradict federal law.

o Here there is no suggestion that congress granted Gibbons an exclusive license. Other people can navigate as well.

Limits set forth by Marshall: (P. 121) Congress can’t do anything it wants. Commerce entirely within the state is reserved for the state itself Limitations only as under the constitution

JUSTIFYING NATIONAL REGULATION OF LOCAL ACTIVITIES ON THE BASIS OF THEIR RELATIONSHIP TO INTERSTATE COMMERCE

U.S. V. E.C. KNIGHT CO. Court affirmed the dismissal of a government civil action to set aside, under the Sherman Act, the acquisition by the American Sugar Refining Company of the stock of four other sugar refineries. Government alleged that the acquired companies had produced about 33% of all sugar refined in the US and that American’s acquisition gave it

control of 98%.

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Courts decision rested on statutory construction, but that interpretation was premised on the view that Congress could not under the commerce clause reach a monopoly in “manufacture.”

“Manufacture is transformation – the fashioning of raw materials into a change of form for use. The functions of commerce are different. The buying and selling and the transportation incidental thereto constitute commerce.”

Dissent – Oliver Wendell Holmes – “ Commerce depends upon population, but congress could not, on that ground, undertake to regulate marriage and divorce. ….I can see no part of the conduct of life with which one similar principles congress might not interfere.

ORIGINS OF THE “SUBSTANTIAL ECONOMIC EFFECTS” APPROACH

HOUSTON E. & W. V. UNITED STATES (SHREVEPORT RATE CASE): Railroads were setting rate per mile much cheaper between points within Texas than the rate from Texas to Louisiana set by the Interstate Commerce Commission; the lower rates inside of Texas hurt business in Louisiana; railroads claimed that they could regulate rates inside of Texas; Court found that railroads couldn’t set lower rates because even though it was an intrastate matter, Congress has the power to regulate all matters having a close and substantial relation to interstate traffic majority opinion sustained congressional authority to reach intrastate rail rates that discriminated against interstate railroad traffic. “The fact that carriers are instruments of intrastate commerce, as well as of interstate commerce, does not derogate from the complete and

paramount authority of congress over the latter, or preclude the Federal power form being exerted to prevent the intrastate operations of such carriers from being made a means of injury to that which has been confided to Federal care.

o Whenever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the state, that is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the exercise of its constitutional authority and the state, and not the nation, would be supreme within the national field.”

This is not to say that congress possesses the authority to regulate the internal commerce of a state, as such, but that it does possess the power to foster and protect interstate commerce, and to take all measures necessary or appropriate to that end, although interstate transactions of interstate carriers may thereby be controlled.”

In these early cases, the Court invalidated economic regulatory laws if:(1) the activities being regulated had a substantial economic effect upon interstate commerce (Shreveport Rate Case)(2) the activity itself could be viewed as being part of the “current” of commerce

Congress also used the technique of prohibiting interstate transport of certain items or persons; their power to do so was from the commerce power, but the reason for doing so was more of a police power or moral regulation

THE “STREAM OF COMMERCE” THEORY

While the Court’s emphasis on practical considerations effect on commerce provided one rationale for demonstrating the impact of the local on the interstate, several other decisions outlined an alternative rationale suggesting that some local activities were controllable because they could themselves be viewed as “in” commerce or as an integral part of the “current of commerce”.

SWIFT & CO. V. U.S. – Provided the impetus. “when cattle are sent for sale from a place in one state, with the expectation that they will end their transit, after purchase in another, and when if effect they do so, with only the interruption necessary to find a purchaser at the stockyard, and when this is a typical, constantly recurring course, the current thus existing is a current of commerce among the states, and the purchase of the cattle is part and incident of such commerce.”

NATIONAL “POLICE” REGULATION Congress used the commerce power increasingly in the late 19th century not only to deal with the emerging problems of the national economy but also with problems of morality and criminality such as gambling, prostitution, and theft. Cases differed from others for 2 reasons:

(1) the objective of the legislation seemed to be primarily moral, as with efforts to control gambling and prostitution; the primary aim was typically quite far removed from the economic concerns that presumably had prompted the commerce clause.

(2) The technique of regulation differed: the congressional sanction was imposed at the state line, though the “harm” sought to be alleviated was primarily local; the form of regulation was to prohibit certain types of interstate movements.

i. Commerce-prohibiting technique gave the court far less trouble than efforts by congress to impose sanctions directly upon intrastate activity.

IN MARSHALL V. MCCULLAH If congress uses it’s power as a means to it’s legit ends then court should strike it down. But here, they did not strike it down.

CHAMPION V. AMES (LOTTERY CASE) Congress prohibited the interstate transport of lottery tickets; the Court upheld the prohibition, saying that because Congress only regulated the interstate transport of the lottery tickets, it was not interfering with intrastate matters; a four-Justice dissent said that Congress could regulate commerce itself and lottery tickets were not “articles of commerce” prohibited importing, mailing, or interstate transporting of lottery tickets.

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“lottery tickets are subjects of traffic and therefore are subjects of commerce” and that the prohibition of commerce lay within the regulatory power of congress.

HIPOLITE EGG CO. V. U.S. Congress passed Act that allowed officials to seize a shipment of adulterated eggs after they had arrived in the state of their destination; Court allowed this because Congress had right to bar products from interstate commerce and prevent their use prohibits the interstate shipment of preserved eggs, because the label failed to disclose that they contained a “deleterious” ingredient.

HOKE V. U.S. court upheld the Mann Act, prohibiting the transportation of women in interstate commerce for immoral purposes. “As applied” challenge as opposed to the “facial” challenge

o As applied - Constitutional in some cases and not in others. o Facial – opposed the constitutional statute on its face – stating that it does not apply to anyone.

CHILD LABOR CASE

HAMMER V. DAGENHART (CHILD LABOR CASE): Congress passed a law that prohibited the interstate transport of goods prepared by child laborers; the Court struck down this law; they distinguished it from the previous police power prohibitions because in those Congress was preventing the evil from being transported (lottery tickets, rotten eggs); here, the interstate transport had nothing to do with the evil sought to be prevented (child labor) struck down a congressional act of 1916 that excluded the products child labor from interstate commerce. The law barred the transportation in interstate commerce of goods produced in factories employing children under the age of fourteen or

employing those between the ages of 14 and 16 for more than 8 hours a day, or 6 days a week, or at night. o Focus is on what goes on here. Whereas in other situations the focus was on the product. The only reason congress can be prohibiting

these products is to regulate local commerce. Regulating the hours of children working in manufacturing doesn’t fall within the power to regulate commerce among the several states because

o Manufacture does not equal commerceo Only deals with one state.

Instead congress prohibits the shipment in interstate commerce across state lineso Court says that congress is trying to really control child labor – not shipment. The products are not inherently dangerous or defective or

a threat to interstate commerce.

Tension between judicial review and democracyo Judges by design are anti-democratic, tenured for life with salary protectiono Congress democratically elected.

THE COURT THREATENS THE NEW DEAL

RR RETIREMENT BOARD V. ALTON RR CO. The courts decision in Alton invalidated a law establishing a compulsory retirement and pension plan for all carriers subject to the Interstate Commerce Act. The law “was not in purpose or effect a regulation of interstate commerce within the meaning of the constitution”. Rejected the argument that pensions were “related to efficiency of transportation”. Suggested that such regulations are really and essentially

related solely to the social welfare of the worker, and therefore remote from any regulation of commerce. Court has a sense of what the real reasons are for congress to do certain things – congress is trying to help the workers by giving them a pension

and this isn’t really directly designed to affect commerce.

SCHECHTER POULTRY CORP. V. U.S. These were not “transactions ‘in’ interstate commerce,” the interstate transaction regarding poultry ended when the shipments reached the Brooklyn slaughterhouse. the court characterized the distinction between direct and indirect effects of intrastate transactions upon interstate commerce as “a fundamental

one, essential to the maintenance of our constitutional system.: o Activities that affected interstate commerce directly were within Congress’ powero Activities that affected interstate commerce indirectly were beyond congress’ reach.

Justification for the formal distinction was rooted in the fear that otherwise, “there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government.”

Stream of commerce had ended – the poultry market is the end of the stream. Chickens are sold locally – no more interstate.

CARTER V. CARTER COAL Different because coal is mined before production. Before it enters the stream of commerce. The distinction between a direct and an indirect effect turns, not upon the magnitude of either the cause or the effect, but entirely upon the manner

in which the effect has been brought about.

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Production is not commerce.

FDR’S COURT-PACKING PLAN Roosevelt proposed that “when any judge of a court of the U.S. has attained the age of 70 yrs and has held a commission or commissions as judge

of any such court or courts at least 10 years, continuously or otherwise, and within 6 months thereafter has neither resigned nor retired, the President, for each such judge who has not so resigned or retired, shall nominate, and by and with the advice and consent of the senate, shall appoint one additional judge to the court to which the former is commissioned.

Number of the judges is not regulated by the constitution Congress thought it was a threat to judicial independence

o And possibly unconstitutional. o This was a great effort of self restraint by the congress – it doesn’t violate the letter of the constitution but it violates the spirit of the

constitution. President and congress would want to sway the decisions of the court.

COMMERCE POWER (MODERN CASES) The modern commerce clause analysis began in 1937; the Court showed a vastly greater willingness to defer to legislative decisions by Congress

THE DECLINE OF LIMITS ON THE COMMERCE POWER FROM 1937-1995

NLRB V. JONES & LAUGHLIN STEEL Company broke the National Labor Relations Act by engaging in unfair labor practices in their Penn. plant; Court upheld NLRA under the commerce power; Court reasoned that because Jones & Laughlin was a multi-state company, a possible labor stoppage of the Penn. intrastate manufacturing operations would have a substantial effect on interstate commerce The Court in NLRB abandoned the “current of commerce” rationale and said that so long as the activity has a substantial economic effect

upon interstate commerce, it can be regulated by Congress Petitioner, the National Labor Relations Board, challenged the lower court's denial of its petition to enforce an order requiring respondent

employer, which was engaged in the manufacture of iron and steel, to cease and desist from unfair labor practices, to offer reinstatement to 10 employees at one of its plants who were discharged for union activity, to make good their losses in pay, and to post notices.

Steel Company was a huge company located in many different states and cities. o The whole aspect of the company is designed to be interstate all the time.

The court reversed, ruling that the National Labor Relations Act was a proper exercise of Congress' power to regulate interstate commerce, that employees had a right to self-organization, and that discrimination and coercion to prevent exercise of this right was a proper subject for condemnation by legislative authority.

o The court further ruled that the Act applied to respondent's employees who were engaged exclusively in production because intrastate activities that were closely connected to interstate commerce were subject to regulation by Congress.

Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.

UNITED STATES V. DARBY Fair Labor Standards Act prohibited goods from being sold in interstate commerce if the company didn’t meet the health and well-being standards (minimum wages and maximum hours) for its employees; Court overruled Hammer v. Dagenhart (Child Labor) and allows this regulation; Congress is allowed to impose whatever conditions it wishes upon the privilege of engaging in an activity that substantially affects interstate commerce; The Court made it clear that it was not concerned with Congress’ motive behind the law; this is true in general for Commerce Clause analysis; as

long as there is a substantial effect on interstate commerce, it is okay “Our conclusion is unaffected by the 10th Amendment, which states but a truism that all is retained which has not been surrendered.”

The Prohibition of shipment of the proscribed goods in interstate commerce under §15(a)(1). Congress, following its own conception of public policy concerning the restrictions which may appropriately be imposed on interstate commerce,

is free to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals or welfare, even though the state has not sought to regulate their use.

The motive and purpose of a regulation of interstate commerce are matter for the legislative judgment upon the exercise of which the constitution places no restriction and over which the courts are given no control.

o Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are with the plenary power conferred on Congress by the Commerce Clause.

Congress has the legislative fact-finding at its disposal, court does not.

McCulloch v. Maryland (pp 92) – powers congress isn’t given used to further powers that congress does have. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end,

which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional. 

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JUDICIAL DEFERENCE TOWARD EXERCISE OF THE COMMERCE POWER

WICKARD V. FILBURN Fliburn was a dairy farmer who was penalized under federal law for growing excess wheat on his farm; Agricultural Adjustment Act set quotas on the amount of wheat one could produce; Filburn challenged the Act because the excess wheat was being consumed on his farm and was purely local; Court upheld the act because consumption of home grown wheat has a market effect and even though this singular farmer won’t have an effect on the market, the cumulative effect of many farmers doing this will affect the market. Wickard was the first time the Court looked at the aggregate effects of an action; if a single action taken alone wouldn’t substantially affect

interstate commerce, but the cumulative effect of that action by many people would affect interstate commerce, then Congress can regulate case often thought to demonstrate the outer limits of the “affecting commerce” rationale.

USING THE COMMERCE POWER FOR SOCIAL ENDS: THE BAN ON DISCRIMINATION IN PUBLIC ACCOMMODATIONS IN THE CIVIL RIGHTS ACT OF 1964

HEART OF ATLANTA MOTEL V. U.S. The court sustained the law against commerce clause challenge by a motel located in downtown Atlanta that wished to continue its practice of refusing to rent rooms to African Americans. “While the Act as adopted carried no congressional findings, the record of its passage through each house is replete with evidence of the burden

that discrimination by race or color places upon interstate commerce. Motels served people moving in commerce and it’s difficult to move if you can’t stay in a hotel.

KATZENBACH V. MCCLUNG Court likewise upheld the application of Title II to Ollie’s BBQ, a family restaurant in Birmingham, Alabama, with a seating capacity of 220 customers and located 11 blocks from an interstate highway. Food comes from interstate commerce, business comes from interstate commerce.

USING THE COMMERCE POWER TO CONTROL CRIME

PEREZ V. U.S. Court appeared to reach the outer limits of the “affecting commerce” rationale for federal criminal laws. The decision upheld a federal prohibition of “extortionate credit transactions” – loan sharking enforced by threats of violence. Defendant only loaned locally – intrastate. Government argued that the loan sharking has a national network.

Commerce power has become the strongest of congress’s enumerated power since 1890.o Proliferation of federal criminal laws -

THE LIMITS OF THE COMMERCE POWER

UNITED STATES V. LOPEZ Gun-Free School Zone Act prohibited possession of guns near or on a school zone; the court said that there was little connection to commerce and the statute didn’t include any finding by Congress that the activity being regulated affected commerce; there was no nexus to interstate activity and the activity was not commercial In Lopez, the gov. argued that possession of guns may result in a violent crime, violent crimes deter people from traveling to an area, and the

violent crimes will hurt the schools ability to educate kids, who then become less economically-productive adults Court rejected these arguments because they would allow Congress to do too much regulation, as long as it affected the economic productivity of

individuals; the Court said that if this was true, Congress could regulate things such as school curriculums and child rearing

3 broad categories of activity that Congress may regulate under its commerce power among Several States: (draw the line at economic activities)(1) Congress may regulate the use of the channels of interstate commerce(2) Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate

commerce, even thought the threat may come only from intrastate activities. (3) Congress can regulate (local) activities that have a substantial relation to interstate commerce, meaning those that substantially

affect interstate commerce (the substantial affects test) Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce. Substantially Affect Interstate commerce.

i. Economic activities can be aggregated – (ie. Wickard)ii. Non-economic activities – no aggregation.

Thomas – concurs – “much if not all of Art. I, §8 would be surplusage if congress had been given authority over matters that substantially affect interstate commerce. An interpretation of cl. 3 that makes the rest of §8 superfluous simply cannot be correct.

STATUTORY INTERPRETATION AND CLEAR STATEMENT OF CONGRESSIONAL INTENT

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Court undertakes a narrow statutory construction to avoid what it called a serious commerce clause question (doctrine of constitutional avoidance).

THE DISTINCTION BETWEEN ECONOMIC AND NONECONOMIC ACTIVITIES

UNITED STATES V. MORRISON Violence Against Women Act of 1994 gave women a civil cause of action for gender-based violence; a woman was raped and sued, and the defendants contended that the act was beyond the scope of Congress’ commerce powers; Court struck down the law, heavily relying on the fact that it regulated a non-economic activity; even though there were Congressional findings supporting the idea that violence against women effects interstate commerce, the majority said that they would not allow Congress to regulate any crime as long as there is proof that has effects on transit, employment, production or consumption The main legacy of Lopez and Morrison is that a non-commercial activity will have to have a pretty obvious connection to interstate

commerce and the Court will not give much deference to the fact that Congress believes that connection exists If the statute regulates economic activity, aggregation of the effects will be allowed; if the activity is non-economic, aggregation won’t be

allowed to prove that the activity affects interstate commerce For the same 3 reasons as Lopez – Gender motivated crimes of violence are not, in any sense of the phrase, economic activity. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate

commerce has always been the province of the states.

WHERE WE ARE NOW – CONGRESS HAS LIMITS BECAUSE OF TEXT OF CONSTITUTION. 3 broad categories of activity that Congress may regulate under its commerce power among Several States: (draw the line at economic activities)

(1) Congress may regulate the use of the channels of interstate commerce(2) Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate

commerce, even thought the threat may come only from intrastate activities. (3) Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce.

Substantially Affect Interstate commerce. iii. Economic activities can be aggregated – (ie. Wickard)iv. Non-economic activities – no aggregation.

10th amendment – something is reserved to the state governments. Test for interstate commerce MUST reserve some powers for the state. If it doesn’t than it is not in line with the constitution and it’s amendments.

CONGRESSIONAL POWER TO REGULATE STATES

THE RISE AND FALL OF STATE CLAIMS OF IMMUNITY FROM FEDERAL REGULATION

COYLE V. OKLAHOMA (1911) Congress cannot tell states where to put their state capital. There may be economic reasons for congress to decide where the state capital should go – but it is a traditional state power.

U.S. V. CALIFORNIA (1936) Court upheld a penalty imposed on a state-owned RR for violation of the Federal Safety Appliance Act. Judges opinion found it unnecessary to rule upon California’s argument that its operation of a RR involved the exercise of “a public function in its

sovereign capacity.” The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the constitution. The state can no more deny the power if its exercise has been authorized by congress than can an individual.

NEW YORK V. UNITED STATES New York owns and runs a bottled water company and is taxed by fed. gov.; NY claims that it shouldn’t be taxed because it is a state; Court holds that tax is okay because a state can be taxed if it is doing something that is not an exclusive, traditional state function; here, the state is acting like a business and not the government “Surely the power of congress to lay taxes has impliedly no less a reach than the power of congress to regulate commerce. There are, of course,

state activates and state-owned property that partake of uniqueness from the point of view of intergovernmental relations. These inherently constitute a class by themselves. Only a state can own a statehouse

Until 1976 – the court continued to reject challenges to federal regulations allegedly interfering with state autonomy, over occasional protest and with occasional qualification.

NATIONAL LEAGUE OF CITIES V. USERY Congress extended Fair Labor Standards Act to cover minimum wage and hour regulations for state employees; the Court struck down the extension of the Act because it violated the 10th Amendment requirement that “Congress may not exercise power in a fashion that impairs the States’ integrity or their ability to function effectively in the federal system”; Court didn’t want to take the power to make “fundamental employment decisions” away from the States and give it to Congress Court’s holding said that Congress could not interfere with traditional government functions

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Here, the State’s compliance with the federal law would impair their ability to allocate their funds and structure operations in areas of traditional government functions

Held that insofar as the challenged amendments operate to directly displace the states freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted to congress.

The state has to have control of its own functioning and allocate it’s budget to its most crucial needs. Congress cannot run the states budget.

HODEL V. VIRGINIA SURFACE Court restates National League of Cities holding as a 3 part test:

(1) There must be a showing that the challenged statute regulates the states as states(2) The federal regulation must address attributes that are indisputably “attributes of state sovereignty”(3) It must be apparent that the State’s compliance with federal law would directly impair their ability to structure integral operations

in areas of traditional governmental functions

GARCIA V. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY Same case as National League, except the employees worked for public mass-transit system; Court overrules Nation League of Cities and says that Congress can regulate States; they said that the distinction between “traditional” and “non-traditional” governmental functions was too difficult to draw; Court said that state sovereignty interests were still protected by the procedural safeguards inherent in the structure of the political system Garcia seems to say that once Congress, acting pursuant to the commerce power, regulates the states, the fact that it is a state being regulated has

no practical significance; if the regulation would be valid if applied to a private party, it is also valid as to the state Overruled National League of Cities – found that the aftermath of National League of Cities demonstrated that the effort to articulate the

boundaries of state regulatory immunity in terms of “traditional governmental functions” had proven “unworkable.” Rejected the unsound principle and unworkable in practice – a rule of state immunity from federal regulation that turns on a judicial appraisal of

whether a particular governmental function is “integral” or “traditional”.

THE PROTECTION OF STATE AUTONOMY AFTER GARCIA

NEW YORK V. UNITED STATES Radioactive Waste Policy Act gave states incentives to take care of the waste produced within its borders; the “take title” incentive made states take title to the waste if it was not disposed of and the states would be liable for damages in connection with the disposal of the waste; NY sued the fed. gov. saying that this incentive violated the 10th Amendment; Court invalidated the incentive because it went beyond encouragement; Congress was using Commerce Clause to regulate states to regulate waste; Congress cannot commandeer state governments into service and command them to implement a federal regulation NY v. United States stands for the idea that Congress cannot commander the legislative processes of the states

Low Level Radioactive Waste Policy Amendments Act of 1985:(1) Monetary Incentives - States with disposal sites are authorized to impose a surcharge on radioactive waste received from other States; (2) Access Incentives – states could gradually increase the cost of access to their sites and then deny access altogether to waste generated in states that

did not meet federal deadlines. a. the Secretary of Energy collects a portion of this surcharge and places it in an escrow account; and

(3) Take title provision – a state that failed to provide for the disposal of all internally generated waste by a particular date was required to take title to and possession of the waste and become liable for all damages suffered by the waste’s generator or owner as a result of the state’s failure to promptly take possession.

a. States achieving a series of milestones in developing sites receive portions of this fund.In effect - Congress is ordering the state to legislate a solution.

Congress many not simply “commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program”.

Congress lacked the authority in most respects to govern the people directly. BUT:

o Under congress’ spending power, “Congress may attach conditions on the receipt of federal funds” o Where congress has the authority to regulate private activity under the commerce clause, we have recognized congress’ power to

offer states the choice of regulating that activity according to federal standards or having state law preempted by federal regulation. By either of the above 2 methods the residents of the state retain the ultimate decision as to whether or not the state will comply. Where congress encourages state regulation rather than compelling it, state governments remain responsive to the local electorate’s preferences;

state officials remain accountable to the people. By contrast – where the federal gov. compels states to regulate, the accountability of both state and federal officials is diminished.

o Accountability is thus diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not preempted by federal regulation.

Reasons why Federal congress can’t tell states what to do: o Constitutional Power – 10th Amendment - states would become regulatory arms of congressional power. This would not be

consistent with state residual sovereignty.o Political Accountability - congress is shifting accountability making it difficult for voters to know who to blame.o Destruction of states – like McCullach – taxation can destroy the bank, here congress can regulate the states out of existence. o Cost – congress here is asking the states to do the job with their own money. Shifting of cost to states.

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Options left open to congress: O’Connor says that congress can use spending power to induce states to do what congress wants. Congress can threaten to take over this area itself if the states don’t act.

o Line of accountability would then be clear.

Stevens – Dissent: “The notion that congress does not have the power to issue “a simple command to state governments to implement legislation enacted by

Congress” is incorrect and unsound. There is no such limitation in the constitution. Stevens’ posses a question of the “default rule” that congress can do whatever it wants unless it is told that it can’t do it. (Opposite of O’Connor’s

default rule – congress has “enumerated” powers and the rest they don’t have).

PRINTZ V. UNITED STATES Brady Handgun Control Act required local law enforcement officers to perform background checks on purchasers of guns for a temporary period of 5 years; a county sheriff in Montana objected and sued; Court struck down regulation because it compelled states to enact or administer a federal regulatory program; in NY v. United States, Congress was commandeering the state legislatures; here, Congress is commandeering state executive officers; this violates state autonomy provided by the 10th Amendment Garcia says that when Congress passes a generally applicable law, the 10th Amendment does not entitle a state’s own operations to an

exemption, merely because it is a state that it being regulated along with all the other private individuals NY and Printz stand for the idea that Congress cannot force state governments to enact legislation or force state officials to perform

governmental functions; this is not part of a generally applicable federal scheme talked about in Garcia

Power to commandeer is the power to destroy (similar to tax)o Congress could give state forces so many tasks that they would have no time to do anything under state law.

See Same Reasons as NY v. U.S.

Reasoning/Rational: Is there any text that expounds? (no specific provision…)

o Commerce powero Necessary and Proper Power vs.o Reference of “States” Powers

Since there is no text you should look at the: o History :

Federal Regulation of State Courts - history of congress requiring state courts adjudicating certain matters. state courts are different from state legislatures. (congress has the authority to create or not create lower federal

courts – some think that this has a bearing on state court decisions.) Permissive Request – “a command to the State’s executive but a recommendation to their legislatures.” No

Commandeering. o Structure :

Separation of Power – Take Care Clause Court says that in addition to federalism, separation of powers argues against commandeering. Undermine the power of the president if congress can go straight to the state executives. Bypassing the

president would disable the president from enforcing federal law. o Precedent : not much president – no commandeering until the 1970s and first time it got to the SC was N.Y. v. U.S. in 1992.

Structure – Separation of Powero The Federal Executive's unity would be shattered, and the power of the President would be subject to reduction, if Congress could

simply require state officers to execute its laws.

Commandeering - Federal Government may not compel the States to enact or administer a federal regulatory program.o Cost - By forcing state governments to absorb the financial burden of implementing a federal regulatory program, Members of

Congress can take credit for "solving" problems without having to ask their constituents to pay for the solutions with higher federal taxes. And even when the States are not forced to absorb the costs of implementing a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects.

THE LIMITS OF THE STATE AUTONOMY PRINCIPLE AFTER GARCIA, NEW YORK AND PRINTZ

RENO V. CONDON Court held that motorist information is an “article of commerce” and Congress can use its commerce power to regulate the states’ right to sell or disclose that information In summary, there are 4 categories of activities that Congress can regulate under the modern Commerce Clause:

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(1) Channels : Congress can regulate channels of interstate commerce, i.e. anything to do with highways, waterways, and air traffic

(2) Instrumentalities : Congress can regulate instrumentalities of interstate commerce, i.e. people, machines, and other things used in carrying out commerce

(3) Articles : Congress can regulate articles moving in interstate commerce(4) Substantial Effect : Congress can regulate activities that have a substantial effect on interstate commerce

Can congress prohibit states from selling or disclosing info: o Court says – YES – because “the personal, identifying information regulated by the DPPA is a thing in interstate commerce’ within

the meaning of Lopez, “the sale or release of that information is therefore a proper subject of congressional regulation.” o Because drivers’ information is an article of commerce, its sale or release into the interstate stream of business is sufficient to

support congressional regulation.”

ADDITIONAL CONGRESSIONAL POWERS

THE TAXING POWER AS A REGULATORY TOOL

Art. I, § 8 says that Congress shall have the Power to lay and collect Taxes, Duties, Imports, and Excises These additional powers may not be as important anymore given the breadth of the commerce power. Taxing power was an alternative to commerce power when congress didn’t have power under the interstate commerce clause.

CHILD LABOR TAX CASE (BAILEY V. DREXEL FURNITURE CO.) Congress taxed net profits of companies that used child labor; Court struck down the tax; it had previously struck down a law under the commerce power where Congress attempted to penalize child labor; this tax was a pure penalty and that is not allowed Taxes are occasionally imposed in the discretion of the legislature on proper subjects with the primary motive of obtaining revenue from them and

with the incidental motive of discouraging them by making their continuance onerous. Taxes that discourage – do not lose their character as taxes because of the incidental motive. BUT HERE IT DOES.

o There comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.

Court says that this is more a regulation of conduct that congress can’t really reach under the commerce power. A tax will be struck down as invalid if its regulatory effect is something that Congress could not achieve directly (i.e. if Congress can’t regulate a

business under the Commerce Clause, but attempts to make a tax to have the same regulatory effect, it won’t be allowed) In Child Labor Case, Congress couldn’t directly regulate child labor, so it could not pass a tax that had the same regulatory effect In recent years, the “tax v. regulation” issue has become somewhat less important because of the broad commerce power of Congress

Some general rules about taxing:(1) A tax that produces substantial revenue will almost certainly be allowed, and the Court will not inquire into Congress’ motive(2) Regulatory provisions that accompany the tax are valid if they bear a reasonable relation to the tax’s enforcement(3) A tax which regulates directly through its rate structure is valid

U.S. V. KAHRIGER (1953) Upheld the constitutionality of an occupation tax imposed by the 1951 Revenue act, which levied a tax on persons engaged in the business of accepting wagers and required such persons to register with the collector of internal revenue. A federal excise tax does not cease to be valid merely because it discourages or deters the activities taxed. Nor is the tax invalid because the

revenue obtained is negligible. o This is just like any tax – court is not going to look behind the legislative purpose.

McCullach – power to tax is not the power to destroy. o Here although the court ignored it – the power of congress to tax – will enable states to punish.

THE SPENDING POWER AS A REGULATORY DEVICE

Art. I, § 8 gives Congress power to lay and collect Taxes, to pay the Debts, and provide for the common defense and general welfare of the United States

UNITED STATES V. BUTLER Agricultural Adjustment Act had government making contracts with farmers to reduce their crops to help stabilize the economy; Court invalidates act because Congress is allowed to spend for the general welfare, but cannot regulate for the general welfare; Court says Congress has invaded the rights reserved for the states Madison thought that Congress could only spend for the general welfare for things enumerated in the Const.; Hamilton thought that the spending

power was separate and distinct from enumerated powers and the only requirement is that the spending is for the general welfare The Court accepted Hamilton’s view; the enumerated powers place no limitation on the spending power; the spending must be for the general

welfare This act invades the reserved rights of the states. (10th Amendment)

o It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government.

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The tax, the appropriation of the funds raised, and the direction for their disbursement, are but parts of the plan. o They are means to an unconstitutional end. o The attainment of a prohibited end may not be accomplished under the pretext of the exertion of powers which are granted.

THE COURT’S CURRENT APPROACH TO CONDITIONAL FEDERAL GRANTS TO STATES

SOUTH DAKOTA V. DOLE Congress enacts statute to withhold 5% of federal highway funds to any state that has a drinking age less than 21; since Congress can’t set a fed. drinking age, this was a way to encourage states to make the drinking age 21; the Court upholds the statute; the Court lays out the limitations on the spending power:

Limitations on the Spending Power:(1) Must be for general welfare - Limitations derived from the language of the constitution itself.(2) If Congress desires to condition states’ receipt of federal funds, it must do it unambiguously, enabling the states to exercise their

choice knowingly, cognizant of the consequences of their participation.” a. States are on notice as to what is required of them and when they’ll lose their funds. b. Accountability issues – by making it clear, on the base of law states will have an opportunity to lobby against it. But

if it is ambiguous, the political safeguards and accountability won’t operate correctly. (3) Must be related to federal interest in particular national projects or programs

a. Big point of disagreement b/w majority and dissent. i. Majority – goals is to make highways safer – funds given to those that raise drinking age

ii. Dissent – anything can be justified this way. Money should be conditioned on assent to certain requirements. Congress can condition how money is spent, but beyond that congress can’t make a separate regulation.

(4) Other Const. provisions may provide an independent bar to the conditional grant of funds(5) Inducement might be so coercive so that inducement turns into regulation.

In Dole, the federal interest was enhanced safety on federal highways

THE WAR, TREATY, AND FOREIGN AFFAIRS POWERS

Art. I, § 8 gives Congress power to declare war, tax and spend for national defense, raise and support Armies, and provide and maintain a Navy No general foreign affairs power in art. 1 §8 – federal government gets its power over foreign relations through the Necessary and Proper

Clause, implementing: o Power to declare waro Raise and support army and navieso Captures on land or watero Treaties with foreign nationso Foreign commerce powero Send and Receive Ambassadors - President shall appoint ambassadors and receive foreign ambassadors.

Power to choose who the US likes and dislikes – the power to recognize foreign government as the legitimate government of that country. It is the president who decides who we will have foreign relations with at all.

o Congress power over Immigration and Naturalization. Congress has the power control citizenship. o Art. I § 10 – specific restrictions on states regarding foreign relations

Disabilities on the states that suggest states do not have fundamental powers over war and peace and foreign relations. Extra-textual source of foreign relations power – not just in constitution –

War Powers…

WOODS V. CLOYD W. MILLER CO. Congress passed a federal rent control act regulating rent because of a post-war housing shortage; Court upholds act; Court says that Congress under the War Power has ability to remedy any problems that have arisen because of war even if the war is over; even though fighting is over, things are not back to normal in the U.S. Concurring opinion in Woods cautions that effects of war are permanent and we don’t want to allow the War Power to get too broad and sweeping

because many things can be related to war

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DOMESTIC REGULATION W/ WAR POWER

MISSOURI V. HOLLAND US makes treaty with England to regulate killing of migratory birds in US and Canada; Congress implements this by prohibiting the killing, capturing, or selling of the birds included in the treaty; Missouri sued, claiming this was a local matter not in Congress’ power; Court upholds the laws; The state’s interest, while sufficient to justify regulation in the absence of federal regulation, is too transitory to preempt specific national regulation, especially when the national action arises from the exercise of the treaty power. This case raises the question of what the limits of the treaty power are - it is suggested that there is some subject matter limit (i.e., genuine

international concern) although it is broad. The holding of Holland seems to say that an act of Congress implementing a United States treaty may create regulations that would be

unconstitutional if the Act stood alone. This case implies that a treaty can confer upon Congress powers in addition to those granted in Article I, subject to specific constitutional problems

Concern after the Missouri case that this could be a blank check for the senate and the president to expand congressional power. o Political safeguards of federalism have a role here.

Mechanism for adopting treaties – need president and 2/3 of the senate to adopt a treaty. Could make the argument that if the senate ratifies the treaty, that’s it – little argument that the treaty violates

the reserved rights of the states. Modern trend is to get away from the use of treaties – because they are too difficult.

THE BRICKER AMENDMENT CONTROVERSY Early 1950s, widely voiced concerns that the treaty power was the Achilles heel of the constitution – that any and all constitutional limitations could be overridden via the international agreement route – spurred efforts to amend the constitution. Amendment didn’t pass

REID V. COVERT Where Justice Black stated that no agreement with a foreign nation can confer power on any branch of government that they don’t already have under the Const.; this statement ended the call for a Const. Amendment that a treaty that conflicted with the Const. would be invalid Congress is not given any generalized foreign affairs power in the Const., but the Court has recognized the need for a united foreign policy for the

country and has left foreign affairs issues exclusively for the federal government

THE FOREIGN AFFAIRS POWER OF CONGRESS The impact of the national power as a restraint on state authority is illustrated by :

ZSCHERNIG V. MILLER (1968) Where the court barred application of a state alien inheritance law because it intruded “into the field of foreign affairs which the constitution entrusts to the president and the congress..”

FEDERAL RESTRICTIONS ON STATE POWER

THE “DORMANT” COMMERCE POWER (EARLY CASES) Commerce Clause grants power to Congress to regulate interstate commerce The “Dormant” Commerce Clause is the unwritten idea that because the Const. grants Congress the power to regulate interstate commerce, it bans

states from regulating interstate commerce In dicta of Gibbons v. Ogden, Justice Marshall said that he favored the argument that Congress’ power to regulate commerce is exclusive; he

doesn’t adopt that rules here because there was a contrary federal law and the Supremacy Clause solved the problem

GIBBONS V. OGDEN Positive commerce power case involving the license for operating a steam boat and in the case here – if there is a conflict between state and federal

law – federal law prevails. Digression on dormant commerce clause…. Exclusivity turns on how broad the commerce power is?

a. If it is narrow then it is plausible that it could be exclusiveb. But because it is interpreted broadly – it cannot be exclusive because it would them eviscerate state power.

Art. I, §8 cl. 17 – a. Combo of Art. I, §10 and above – grant to congress and prohibition of states can be read to be exclusive congressional powers.

WILSON V. BLACK-BIRD CREEK: Delaware authorized company to build a dam on creek that led into Del. River; dam impeded navigation; a boat broke down because of the dam and sued; Court said that Delaware is doing this for health reasons, not for the purpose of regulating interstate commerce; Court makes distinction between police power and commerce power and says states are allowed to make regulations under their police power to protect health and safety of citizens Don’t think that the act empowering the Company to place a dam across the creek, can, under all the circumstances of the case, be considered as

repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject.

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Delaware can build the dam in the creek. Reasoning/Rational Value of property is enhanced by excluding the water from the marsh The health of the inhabitants probably improved. Health and safety rationale – yet it has an impact on interstate commerce… Measures calculated to produce these objects – provided they do not come into collision with the powers of the general government, are within

those which are reserved to the states.

COOLEY V. BOARD OF WARDENS: Penn. law required ships leaving ports to hire a local pilot; the Court upheld the law, saying that states can regulate commerce that is of such a local nature as to require different treatment from state to state; only Congress could regulate matters that required a uniform national treatment The Court in Cooley drew the distinction between “local” and “national” matters; Court used this distinction to determine what subject matters the

states could regulate Problem with Cooley test is that it looks only at the subject regulated and ignores the impact the states’ regulations have on interstate commerce Purpose of the regulation may be considered:

o A safety measure for harbor and ships or o Employment measure for local pilots.

Congress can and does consent to state laws that are invalid under the dormant commerce clause.

THE “DORMANT” COMMERCE POWER (MODERN CASES)

There are three types of state laws that will be struck down by the dormant commerce clause:(1) Laws that overtly discriminate against out of state interests - a state law that on its face discriminates against out of state commerce is subject

to an extraordinarily strong presumption of invalidity, and will virtually always be struck down. (2) State regulations that have protectionist purpose or effect

a. the court has shown clear antipathy to overt “discrimination” against out of state interests b. The court has likewise invalidated laws that favor local economic interests at the expense of out of state competitors even when they

do not take the form of overtly discriminatory statutes. i. A finding of “protectionism” is generally fatal to a state regulation

(3) Facially neutral laws that unduly burden interstate commerce – court applies a balancing approach.a. Court weighs local benefit vs. burden on interstate commerce. If burden is excessive, the law is struck down. Most complicated to

predict.

FACIAL DISCRIMINATION

PHILADELPHIA V. NEW JERSEY: NJ passed law prohibiting the importation of out of state waste in NJ; NJ wanted to stop other states from sending garbage into their state; Court invalidates law because it facially discriminates against out of state waste; NJ can’t erect a barrier against the movement of interstate trade This case shows that laws that facially discriminate against out of state interests are per se invalid The evil of protectionism can reside in legislative means as well as legislative ends. Whatever NJ’s ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming form outside the State unless

there is some reason, apart from their origin, to treat them differently. o Both on its face and on its plain effect, the law violates this principle of nondiscrimination.

A presumably legitimate goal cannot be sought to be achieved by the illegitimate means of isolating the state from the national economy. Also relevant are the court’s decisions holding that a state may not accord its own inhabitants a preferred right of access over consumers in other

state to natural resources located within its borders. The cases stand for the basic principle that a “state is without power to prevent privately owned articles of trade from being shipped and sold in

interstate commerce on the ground that they are required to satisfy local demands or because they are needed by the people of the state.”

Difference b/w this and other allowed quarantine laws is that those laws Did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles, whatever their origin.

o There has been no claim here that the very moment of waste into or through NJ endangers health, or that waste must be disposed of as soon and as close to its point of generation as possible.

Facially discriminatory taxes and fees:

CHEMICAL WASTE MANAGEMENT V. HUNT (1992) Opinion found the differential fee indistinguishable from the outright prohibition invalidated in Philly v. NJ. Found that the state had available “less discriminatory alternatives” for reducing the volume of hazardous waste disposal, such as higher fees or

quantity limits applicable to all waste disposed of in Alabama, regardless of origin. Also found that out of state waste posed no greater cost to Alabama than in state waste.

OREGON WASTE SYSTEMS V. DEPARTMENT OF ENVIRONMENTAL QUALITY (1994) Court invalidated a discriminatory fee. Found the differential surcharge facially discriminatory and thus subject to the “strictest scrutiny” or a “virtually per se rule of invalidity.”

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Rejected states argument that higher fee for out of state waste merely compensated for costs charged in other ways such as by general taxation to in-state waste producers.

CAMPS NEWFOUND V. HARRISON: Maine gave tax breaks to camps that primarily served Maine campers; camps that served out of state campers sued; Court struck down the tax break because it facially discriminated against out of state interests; Court rejected argument that because the camps were non-profit, they should be exempted from this court again found a differential tax scheme per se invalid as facially discriminatory. Dissent by Thomas – suggested that there are alternative constitutional basis for this jurisprudence. Import-Export Clause – intended as anti discrimination clause for state protection. If you use this you can rationalize dormant commerce clause

and get rid of balancing test.

Home processing requirements:

FOSTER-FOUNTAIN PACKING CO. V. HAYDEL The purpose of the law is not to retain the shrimp for the use of the people of Louisiana, it is to favor the canning of the meat and the manufacture of brand in Louisiana by withholding raw or unshelled shrimp from Mississippi plan.

PROTECTIONIST PURPOSE AND EFFECT

Statutes that may not overtly appear discriminatory will be struck down if they have the purpose or effect of discriminating against out of state interests

State Barriers to Out of State Sellers:

BALDWIN V. SEELIG NY state law attempted to set minimum prices to be paid by NY milk dealers; the law also prohibited sales in NY of out of state milk that had been purchased at a lower price than the NY minimum; the law was invalidated because it obstructed the free flow of milk from state to state; NY was penalizing people from buying milk from out of state; NY was trying to separate themselves from the national milk market and remove the advantage that other states had in producing cheaper milk Some states set up a “use” tax to compensate for people going to other states to buy products because the states have a lower sales tax; state

charges the difference between the sales taxes for person to use the product in the state For example, a Mass. resident who buys something in NH with no sales tax will have to pay Mass. “use” tax equal to the sales tax to use product in

Mass.

The limits of Baldwin: compensating use taxes:

HENNEFORD V. SILAS MASON The Court allowed the “use” tax; Court says that “use” tax preserves equality Upheld a Washington use tax on goods bought in other states.

o Eliminate other state’s advantage of lower sales taxes. o All states need to raise revenue and don’t want to discourage states from raising revenue.

Burdening everyone.

De facto discrimination – the court has invalidated facially neutral statutes that actually appear to exist solely in order to protect a particular in-state interest or target a particular out of state interests. Facial neutrality is no defense against a finding of impermissible protectionism.

BACCHUS IMPORTS V. DIAS Hawaii had a liquor tax, but had an exemption for liquor made from the root or shrub indigenous to Hawaii and fruit wine; Court invalidated the exemption because in first exemption was blatantly discriminatory and there was evidence that the second exemption’s purpose was to promote the pineapple wine business in Hawaii, so it was discriminatory; the exemptions, while not facially discriminatory, favored liquor and wine makers in Hawaii over out-of-state competitors; the exemption had a discriminatory purpose Exemption motivated by an intent to confer a benefit on local industry not granted to out of state industry the exemption was held invalid. Per se invalid.

HUNT V. WASHINGTON STATE APPLES ADVERTISING NC law requires that apples shipped into NC have a USDA grade on the box; Washington, the nation’s largest producer of apples, has a stricter grading system that they used instead of the USDA system; Court invalidates the law because it burdened interstate commerce and discriminated against Washington apple growers; the law was neutral on its face, but it had a discriminatory effect against Washington growers trying to sell apples in NC Like NY law in Baldwin, the NC law was trying to remove an advantage that another state has in the sale of goods (removing advantage of sticker

that says Washington apples)

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H.P. HOOD V. DU MOND Hood had milk facilities in NY and wanted another facility; it was denied a license because it was a Boston company and served Mass. Customers; NY didn’t want to take any more milk away from NY residents; Court invalidates the denial of the license; Court says states can’t advance their own commercial interests by curtailing the movement of articles of commerce

FACIALLY NEUTRAL LAWS AND PIKE BALANCING (NEUTRAL LAWS THAT UNDULY BURDEN INTERSTATE COMMERCE) When there is a lack of discrimination or protectionist purpose and the law is facially neutral the law may still be invalidated if the federal interests

outweigh the state’s interests - even if the burden is only incidental

PIKE V. BRUCE CHURCH, INC. AZ required that AZ grown cantaloupes advertise their state of origin on each package; Church was a cantaloupe grower in AZ but had them packed in CA and mixed AZ and CA grown cantaloupes; Court balances the competing interests; AZ had an interest in enhancing the reputation of AZ cantaloupes; this interest was outweighed by the national interest in unencumbered commerce; the burden on out of state packers like Church was undue because they had to keep AZ cantaloupes separate when packaging Here, the state law was neutral on its face and didn’t have a discriminatory purpose or effect; it was struck down because the burden on interstate

commerce outweighs state interests Court balances the burden on interstate commerce and the legitimate state interest (“Pike Balancing”)

Pike Balancing test: “where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”

State Burdens on Transportation:

SOUTH CAROLINA STATE HIGHWAY V. BARNWELL South Carolina set width and weight restrictions for its state highways; Court allowed the restrictions because the highways were state owned and operated; there was a strong local concern; this is the most deferential case in the modern era of dormant commerce clause jurisprudence

SOUTHERN PACIFIC CO. V. ARIZONA AZ passes train length limit within its state borders; AZ claims that longer trains are more susceptible to derailments; Court invalidates length limit because there would be a time-consuming, expensive burden on trains from other states to shorten their length when entering AZ; Court says nature of railroad system calls for Congressional regulation to have a uniform standard Here, the safety benefit proposed by AZ didn’t outweigh the burden on interstate commerce, so the regulation was struck down In Southern Pacific, Court said that some safety restrictions would be ok, such as requiring headlights; safety restrictions can’t be too burdensome

to cause an undue burden on interstate commerceBlack – dissents – this calls for legislative consideration, not judicial.

The contrast b/w Southern Pacific and Barnwell: Differences may be between state owned highways and privately owned railroads.

o May be a market participant exception to the dormant commerce clause. In RR cases, state legislatures is regulating private RR, Barnwell, regulating state highways.

BIBB V. NAVAJO FREIGHT LINES Held invalid an Illinois law requiring the use of contour mudguards on trucks and trailers operating on Illinois highways. Requirement conflicted with other states requirements. “The power of the state to regulate the use of its highways is broad and pervasive. Massive showing of burden on interstate commerce. This is one of those cases where local safety measures that are nondiscriminatory place an unconstitutional burden on interstate commerce.

BENDIX AUTOLITE CORP V. MIDWESCO ENTERPRISES Scalia – weighing the governmental interests of a state against the needs of interstate commerce is a task squarely within the responsibility of

congress.

“MARKET PARTICIPANT” EXCEPTION

When a state is acting as a market participant rather than a market regulator, the dormant commerce clause places no limits on state’s activities The state, as a market participant, is being allowed to do what other normal buyers and sellers are allowed to do (i.e. choose who they do business

with)

SOUTH-CENTRAL TIMBER V. WUNNICKE Alaska sells timber from state-owned land, but they require that the timber be partially processed in Alaska; Court invalidates the regulation because it affects more than just the particular market that Alaska is involved in; Alaska is acting as a market participant in the timber selling market, not the

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timber processing market; the state is engaging in “downstream regulation” of the timber processing market, and was therefore not entitled to the market participant exemption Purpose was to protect existing timber processing industries, promote new industries, and derive revenue from the states timber resources. Reject the contention that a state’s action as a market regulator may be upheld against commerce clause challenge on the ground that the state

could achieve the same end as a market participant. State may not avail itself of the market participant doctrine to immunize its down stream regulation of the timber processing market in which it is

not a participant.

Sound reasons for distinguishing b/w a state’s preferring its own residents in the initial disposition of goods when it is a market participant and a state’s attachment of restrictions on disposition subsequent to the goods coming to rest in private hands:

(1) a state market participant has a greater interest as a “private trader” in the immediate transaction that it has in what its purchaser does with the goods after the state no longer has an interest in them

a. common law recognizes such a notion in the doctrine of restraints on alienation. (2) downstream restrictions have a greater regulatory effect than to limitations on the immediate transaction. This restriction on private economic

activity takes place after the completion of the party’s direct commercial obligations, rather than during the course of an ongoing commercial relationship in which the city retained a continuing proprietary interest in the subject of the contract.

Rehnquist and O’Connor – dissent – State could accomplish the same result under any number of ways –

o State could choose to sell its timber only to those companies that maintain active primary processing plants in Alaska (Reeves)o Or state could directly subsidize the primary processing industry within the state. (Alexandria Scrap)o The state could even pay to have the logs processed and then enter the market only to sell processed logs

HUGHES V. ALEXANDRIA SCRAP CORP Court rejected a commerce clause attack on the program, although it noted that under a traditional commerce clause analysis the program might be invalid because it had the effect of reducing the flow of goods in interstate commerce. Court concluded that MD action was not “the kind of action with which the commerce clause is concerned,” because “nothing in the purposes

animating the commerce clause prohibits a state, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others.”

REEVES V. STAKE Court allowed South Dakota to restrict the sale of cement produced at a state-owned plant to state residents Court upheld a South Dakota policy of restricting the sale of cement from a state-owned plant to state residents, declaring that the basic

“distinction drawn in Alexandria Scrap between states as market participants and states as market regulators makes good sense and sound law.” recognized the principle that the commerce clause places no limitations on a state’s refusal to deal with particular parties when it is participating in

the interstate market in goods.

WHITE V. MASS. COUNCIL OF CONSTRUCTION EMPLOYEES Boston was allowed to say that any construction projects funded by the city had to employ a work force of at lease 50% city residents; Court allowed this because Boston was acting as a purchaser of construction work (market participant) and not a regulator Court rejected the argument that the city was not entitled to the protection of the doctrine because the order had the effect of regulating

employment contracts b/w public contractors and their employees.

3 situations involving states as market participant – where it’s ok. o Hughes - buyero Reeves – sellero White – MA is an employer

THE PRIVILEGES & IMMUNITIES CLAUSE OF ARTICLE IV Art. IV, § 2 says that citizens of each state shall be entitled to all privileges and immunities in the several states The rights protected under this clause are the fundamental rights of the people Corporations and aliens aren’t protected under the clause

(1) The first test to see if there is a P&I violation is to see if the right is “fundamental to national unity” Examples of fundamental rights are:

o Right to be employedo Right to practice one’s professiono Right to engage in business

Once the Court concludes that a “fundamental right” is at stake, the Court applies a two-part test to determine when the discrimination violates the P&I Clause (see United Building & Construction)

Non-economic, recreational rights are not protected under the clause

The differences between the P&I Clause (Art. IV, §2) and the Commerce Clause:(1) Corporations enjoy no protection under P&I Clause

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(2) Congress cannot consent to a P&I violation - while congress may consent to state practices that would otherwise be impermissible under the commerce clause, the Privileges and Immunities clause is a rights provision, not a grant of authority to congress, and so is arguably non-waivable by congress.

(3) The standard of review for privileges and immunities denials is arguably stricter than the balancing test used in dormant commerce clause analysis, though not as strict as that for discriminatory legislation challenged as a commerce violation.

(4) P&I only extends to “fundamental rights” - The Privileges and Immunities clause extends not to all commercial activity but only to “fundamental rights” (dormant commerce clause applies to all commercial activity).

(5) No market participant exception to P&I -The court has recognized no “market participant” exception to privileges and immunities violations as it has to commerce clause scrutiny.

Art. IV, §2 states: “the citizens of each state shall be entitled to all privileges and Immunities of citizens in the several states.” Like the commerce clause it serves as a restraint on state efforts to bar out of staters from access to local resources.

UNITED BUILDING & CONSTRUCTION TRADES COUNCIL V. MAYOR AND COUNCIL OF CAMDEN City of Camden required that 40% of employees doing work on city projects be city residents; Court held that P&I Clause applies to municipal regulations as well as state regulations; Camden had massive unemployment and was trying to raise employment rates; Court remanded the case to determine if Camden’s reason for the regulation was substantial enough and the out of city workers were indeed a “peculiar source” of Camden’s economic decline A person who is not residing in a given state is ipso facto not residing in a city within that state.

o Thus, whether the exercise of a privilege is conditioned on state residency or on municipal residency, he will just as surely be excluded. Safeguards - NJ residents at least have a chance to remedy at the polls any discrimination against them.

o Out of state citizens have no similar opportunity, and they must “not be restricted to the uncertain remedies afforded by diplomatic processes and official retaliation.”

Once determined the clause does apply - Application of the Clause to a particular instance of discrimination against out of state residents entails a 2 step inquiry:

(1) The court must decide whether the ordinance burdens one of those privileges and immunities protected by the clause. The discrimination will violate the P&I Clause unless non-residents are a “peculiar source of the evil” which the law was enacted to remedy

(2) Then determine whether an out of state resident’s interest in employment on public works contracts in another state is sufficiently fundamental to the promotion of interstate harmony so as to fall within the purview of the clause. The plaintiff will win if the discrimination against non-residents does not bear a “substantial relationship” to the problem the statute is attempting to solve.

SUPREME COURT OF NEW HAMPSHIRE V. PIPER Court ruled that New Hampshire could not restrict the bar exam to only New Hampshire residents; Court held that the right to practice law is a sufficiently important and “fundamental” right to be covered under the P&I Clause Majority opinion found that her claim involved a “privilege” under the Clause because, “like the occupations considered in our earlier cases, the

practice of law is important to the national economy”.

CONGRESSIONAL PREEMPTION AND CONSENT Congress exercises it’s article 1 §8 powers and passes a statute that conflicts with state statutes under the supremacy clause under article 6 – the

federal statute will prevail. o Supremacy Clause is the constitutional basis for federal displacement of state law. (Art. I, Cl. 2)

Preemption of State Law The Supremacy Clause of Art. VI says that where there is a direct conflict between state and federal statutes, the state statute is invalid Federal law is said to preempt state law There is express preemption, where the federal law explicitly says that it preempts state law There is implied preemption by a clear showing that Congress meant to exclusively occupy an entire field; this is called field preemption There is conflict preemption, which is a situation where it is impossible to follow both a state law and a federal law

PACIFIC GAS & ELEC. V. STATE ENERGY RESOURCES CONSERVATION & DEVELOPMENT CA passes law placing moratorium on the certification of new nuclear power plants until a better waste disposal technology is developed; Fed. Atomic Energy Act promotes nuclear energy and gave safety regulations; the fed. Act gave Congress exclusive control over safety concerns, but the CA law’s purpose was based on economic reasons; Court also looked at if the CA law frustrated the purpose of Congress’ Act; Court holds that if Congress decides that the Act is frustrated, it can take action; the CA law is upheld Congress intended for the states to continue to make judgments on their use of electricity. Federal government maintains complete control of the safety and nuclear aspects of energy generation; the state exercise their traditional authority

over the need for additional generating capacity, the type of generating facilities to be licensed, land use, ratemaking and the like.

Types of Preemption – congress may preempt state power to regulate in 3 ways: (1) by express statement, (2) by implied occupation of a regulatory field, or (3) by implied preclusion of conflicting state regulations - When preemption is express, the only issue is whether a state statute falls

within the area preempted.

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FIELD PREEMPTION (IMPLIED PREEMPTION) Court requires a clear showing that congress meant to occupy a field. It is intended that federal regulation be exclusive.

RICE V. SANTA FE ELEVATOR Court makes an initial presumption against preemption; Court said “we start with the assumption that the historic police powers of the States were not be superseded by the Federal Act unless that was the clear and manifest purpose of Congress” Rice says that we presume that there is no preemption unless Congress makes it manifestly clear

Sets forth the presumption against preemption. Congress legislated here in a field which the states have traditionally occupied. So we start with the assumption that the historic police powers of

the states were not to be superseded by the federal Act unless that was the clear and manifest purpose of congress. o Such purposes may be evidenced in several ways.

(1) The scheme of federal regulation may be so pervasive as to make reasonable the inference that congress left no room for the states to supplement it

(2) Or the act of congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.

CONFLICT PREEMPTION

FLORIDA LIME V. PAUL Florida growers want to sell avocados in CA but they don’t meet the California standards; they do meet the lower federal standards; Court said that both the federal and CA regulations can coexist and do not conflict; Court upheld the CA standards by saying that the fed. Standard is just a minimum and was not meant to be exclusive

CROSBY V. NATIONAL FOREIGN TRADE COUNCIL Fed. Gov. had sanctions against Burma; Mass. enacted even stricter sanctions; Court invalidated Mass. prohibition; it interfered with Congress’ and President’s authority to conduct foreign policy; foreign relations require uniform policy and the Mass. sanctions compromised the uniformity of the sanctions enacted by Congress This might be Field Preemption in foreign relations – MA should not be setting the foreign policy for the U.S. Congress has carefully (careful calibration) drafted it’s policy – therefore it may be Conflict Preemption as well. Case represents more robust preemption power especially in Foreign Relations cases.

Consent to State Laws: The dormant commerce clause – the power given to congress by the constitution, although not exercised by congress may preempt state law.

o Congress can consent or authorize state laws that would otherwise be preempted by commerce clause.

THE WILSON ACT AND THE RAHRER CASE

LEISY V. HARDIN (1890) The court invalidated an Iowa law prohibiting the sale of intoxicating liquors as applied to beer brewed in Illinois and offered for sale in the Original package in Iowa. “in absence of congressional permission to do so, the state had no power to interfere by seizure.” Wilson act passed months after the decision in Leisy – provided that all intoxicating liquors “transported into any state or territory, or remaining

therein, for use, consumption, sale or storage therein, shall upon arrival in such state or territory be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquors had been produced in such state or territory . and shall not be exempt there from by reason of being introduced therein original packages or otherwise.

o States get to decide how to regulate liquor in their states. Soon after the court held that by virtue of this act a state may apply its prohibition laws to sales of intoxicating liquors in the original packages.

MCCARRAN ACT AND THE PRUDENTIAL CASE Regulation of insurance and taxation by states is left to the states and congress shall not impose barrier to taxation or regulation of insurance.

PRUDENTIAL INSURANCE V. BENJAMIN Congress passes McCarran-Ferguson Act, which reserves to the states the power to regulate insurance; a NJ insurance company sues to overturn a

discriminatory South Carolina insurance tax; Court upholds the insurance tax because Congress consented to states regulating insurance in the McCarran-Ferguson Act

Discriminatory laws that are consented to by Congress can still be struck down by the Court under the Equal Protection Clause Court held that the McCarran act validated the tax – would have been a discriminatory tax had congress not authorized states to violate dormant

commerce clause.

EQUAL PROTECTION AS A LIMIT ON STATE PROTECTIONISM – In addition to the commerce clause and the Privileges and Immunities Clause of Art. IV, the Equal protection Clause of the 14 th Amendment can also serve as a bar to state discrimination in favor of local businesses.

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METROPOLITAN LIFE INS. V. WARD (1985) Equal protection limitation was applied to strike down an Alabama law. Despite McCarran Act – court says there is an equal protection violation. Equal protection clause is an affirmative constraint..

SEPARATION OF POWERS

THE LIMITS ON EXECUTIVE POWER We want to avoid too much power in one branch; we have checks and balances to accomplish this The Const. defined each branch’s powers in Art. I, II, and III Unlike Congress’ powers, the President’s powers aren’t as well defined in Art. II

YOUNGSTOWN SHEET & TUBE CO. V. SAWYER [STEEL SEIZURE CASE]: Pres. Truman ordered gov. to seize the steel mills and keep them open because there was a threat of strike during the Korean War; the steel mills attempt to stop the seizure; the court stops the seizure, saying that it was an attempt by the President to make law; Pres. executes laws and cannot make them President is involved in lawmaking going beyond his authority. At this point in time, the President was not authorized to postpone the strike by statute. There is some indication that legislative inaction can act as a prohibition on the President’s actions. Congress considered giving him such power

and declined to give it to him. President cannot augment his powers domestically as the Commander-in-Chief by authorizing him to seize private activity. The President does not have “necessary and proper” power to exercise his own authority. It is clear that if the President had authority to issue the order he did, it must be found in some provision of the constitution. In the framework of our constitution, the president’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.

o The constitution limits his function in the law making processes to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.

o And the constitution is neither silent nor equivocal about who shall make laws which the president is to execute. President is engaged in law making outside the constitutional scheme/procedures here. The power of congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private

property for public use. (congress is the only one that can authorize it because they have to settle the claim. Sending a letter (congress to president) does not count as a legal instrument.

Justice Jackson’s concurrence laid out 3 categories of Presidential powers:(1) Where the President acts pursuant to express or implied authorization of Congress, in which case his authority is at its maximum

o no encroachment of one branch on the other because they are acting together. Implied authority is not as good as express authority(2) Where the President acts in the absence of either a congressional grant or denial of authority, in which case “there is a twilight zone in which

he and Congress may have concurrent authority, or in which its distribution is uncertain”, he can only rely upon his independent powers, o any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract

theories of law. o twilight zone, because there may be overlapping powers between the two branches; congressional silence interpreted as a restraint

in this particular case.(3) When the president takes measures incompatible with the expressed or implied will of congress, his power is at its lowest ebb, for then he can

only rely on his own constitutional powers minus any constitutional powers of congress over the matter. Where the President acts in contradiction to the express or implied will of Congress; in this case his power is the lowest and he must rely on the executive powers minus any powers of Congress

Jackson felt that this case fell into the 3rd category because Congress had previously not authorized seizure power in a different context in the Taft-Hartley Act

President could have gone to Congress to have them pass a law authorizing him to do so

EXECUTIVE AUTHORITY OVER FOREIGN AND MILITARY AFFAIRS

Executive agreements – executive branch, in foreign relations has resorted to unilateral executive agreements rather than treaties confirmed by the senate according to the procedure set forth in Art. II. Founders did not entrust treaty power to president alone because of the need for checks and balances.

o The presidents authorities to make treaties is checked by the requirement that the senate concur by a 2/3 majority. o Substantial check on the treaty making power – under the supremacy clause treaties are the supreme law of the land and the

supreme law of the land preempts contrary state laws. Necessary to have the senate’s 2/3 concurrence. States are represented by the senate and therefore protected by senates check.

President shifted to non-treaty agreements

3 types of international agreements: (1) Treaties – (president + 2/3 of the Senate) - Clearly marked out by the constitution and incorporated by the supremacy clause. (2) Sole Executive Agreements – president alone enters into an agreement with a foreign country. (President) (Dames & Moore v. Regan)(3) Congressional Executive Agreement – agreement b/w U.S. and foreign country that congress has adopted by bicameral passage. President

and Congress agrees that it is a good idea. (becomes law). (President + House + Senate)

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a. Passed in compliance with Art. I. §7 – go through the procedure for laws. Therefore they are laws. (Supremacy clause) i. Congress could refuse to hear any of these – and could request only for treaties.

UNITED STATES V. BELMONT Court ruled that an Executive Agreement supercedes state public policy court sustained the validity of an executive agreement and held that it took precedence over conflicting state policy.

DAMES & MOORE V. REGAN As part of the settlement of the hostage situation, the Pres. suspended all contractual claims against Iran that were pending in US courts and moved the claims to an international tribunal; the Court found the suspension of claims was within the President’s powers; Congress had long acquiesced to the President’s power to settle claims between US citizens and foreign nations Agreement b/w President and Iran to release hostages – claims by American companies and individuals against Iran were suspended and sent to a

arbitration at claims tribunal at the Hague (not a court, had procedures, but not all constitutional rights). A systematic, unbroken, executive practice, long pursued to the knowledge of the congress and never before questioned may be treated as a gloss

of Executive power vested in the president by §1 of Art. II. Major Foreign policy dispute – needs to be decided.

Reemphasize the narrowness of the decision – o Court does not decide that the president possesses plenary power to settle claims, even as against foreign governmental entities. o But where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign

policy dispute b/w our country and another, and where, as here, we can conclude that congress acquiesced in the President’s action, we are not prepared to say that the President lacks the power to settle such claims.

Crucial to decision is the conclusion that Congress has implicitly approved the practice of claim settlement by executive agreement. Congress has acquiesced to president’s action. The Court’s holding was very limited in scope; it said that if the settlement of claims is necessary to resolve a major foreign policy dispute and

Congress has acquiesced, the President has the power to suspend and settle those claims The Court was not ready to say that the President has general power to settle claims Here the Congressional voice on the matter, though not express, was much stronger than it was in Youngstown

PRESIDENT, CONGRESS AND WAR POWERS

War Powers Resolution of 1973? Congress can declare war – but it hasn’t since WWII.

o Congress can withhold money for waro Appropriations condition – money not used to invade certain country, etc..

Its procedures specify that the President may introduce troops into hostilities pursuant only to o “(1) a declaration of war, o (2) specific statutory authorization, or o (3) a national emergency created by attack upon the U.S., its territories or possessions, or its armed forces”; o that “the President in every possible instance shall consult with congress before introducing U.S. Armed Forces into hostilities” and

during those hostilities;….”

Under Art. I, § 8 Congress has the power to declare war and raise and support armies and appropriate funds for this. But the President is Commander-in-Chief so the president ends up doing things tantamount to war. Isn’t this then invading Congress’ war power?

This question comes up b/c there are very few modern declarations of war- none since 1941. Congress has tried to put limits on the President exercising using armed forces without Congressional authorization. So, Congress passed the War Power Resolution which was vetoed by Nixon b/c he thought it was unconstitutional. Congress overrode the veto

and the resolution is still on the books. The Act required consultation and reporting requirements when forces are introduced in absence of declaration of war. Then within 60 days of submitting a report to Congress, the President shall terminate use of armed forces unless Congress declared war, extended

by law the 60 day period, or there was an unavoidable conflict b/c of an armed attack on the US making Congress unable to meet etc. Congress has not yet sued under this act- they would probably not have standing to sue. Perhaps it would be easier for them to shut off

appropriations than to attempt to sue. In 1991 President Bush was amassing troops for the Gulf War and here was some question as to whether the President would get permission for

this action. Congress passed a resolution authorizing the action – although he only ended up being there for 100 hours. But this raises the question-is a

resolution enough or do we need a formal declaration of war? There is a lot of gray area Congress seems to have the power to commit troops to battle, but the President has the power to do whatever he wants with the troops once they

are committed

THE NON-DELEGATION DOCTRINE Congress delegates broad authority to the President and Agencies to make substantial decisions for the Country.

o Congress delegates b/c of Practicality – many decisions to be made, congress does not have time, resources, expertise to make them. o Delegate to agencies with time, expertise and resources.

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WHITMAN V. AMERICAN TRUCKING ASSOCIATIONS Congress passes statute that allows EPA to set air quality standards; the statute instructs EPA to set air standards to protect the public health with an adequate margin of safety; Court allows the statute; they find that the public health and safety is an adequate intelligible principle The Court in Whitman said that they will almost never second-guess Congress regarding the permissible degree of policy judgment that can be left

to those executing the law The Court said Congress doesn’t need to give specific criteria for saying how much is too much pollution in the air The Court has found an intelligible principle in more vague situations, such as Congress allowing the FCC to regulate airwaves in the “public

interest” In his concurrence, Thomas says that he is not convinced that the intelligible principle doctrine prevents all delegations of legislative power Thomas is making a formalist argument that the Const. says ALL legislative power is vested in Congress Stevens’ concurrence says that Court should simply acknowledge that the delegated power is legislative and that it is constitutional “A certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action” (difficult to separate executive action

and law making when it’s done by the executive) “In short, we have “almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be

left to those executing or applying the law.” The majority says that it’s a nice suggestion (to admit that there is delegation), but under the constitution they can’t recognize that there is

legislative power being delegated to the executive power – because it is unconstitutional.

CONGRESSIONAL ATTEMPTS TO EVADE FEDERAL LAWMAKING PROCEDURES Can Congress delegate legislative power to other bodies? In only two modern cases has the Court struck down statutes because of delegation problems In the Schechter Poultry case, Court struck down Act of Congress that authorized the President to approve “codes of fair competition” because it

delegated legislative power to the executive branch The “intelligible principle” test says that so long as Congress lays down by legislative action an intelligible principle to which the authorized body

is directed to conform, such action is not a forbidden delegation of legislative power

INS V. CHADHA Immigration and Nationality Act allowed one House of Congress to veto the Attorney General’s determination that an alien should not be deported; Court strikes the Act down, saying that for any lawmaking decision, both Houses and the President must be involved The Act violated the requirements of bicameralism and presentment; both Houses must pass a bill for it to become a law and the bill must be

presented to the President before it can be a law Any way you look at this power, there is a problem with it:

o Congress is giving itself executive power to execute the law they madeo Congress is allowing lawmaking to be done by one House, bypassing bicameralism and presentmento Congress is retaining judicial power to affirm or overturn a decision of the executive

Dissent in Chadha says that Congress is giving the AG this power, and it is ok for Congress to reserve this check on the AG’s power Dissent also points out that the Act providing for the one House veto was passed by both Houses and approved by the President

Chadha effectively bans all legislative vetoes Whitman stands for the idea that Congress can delegate broad authority to administrative agencies, while Chadha says that once Congress gives the

power away, it can’t take it back without following Art. I § 7 procedures

The Presentment Clauses – requirement that all legislation be presented to the President before becoming law was uniformly accepted by the Framers.

o The decision to provide the president with a limited and qualified power to nullify proposed legislation by veto was based on the profound conviction of the framers that the powers conferred on congress were the powers to be most carefully circumscribed.

o Beyond doubt that lawmaking was a power to be shared by both houses and the President. Bicameralism – scarcely less concern to the framers than was the presidential veto and the 2 concepts are interdependent.

o Providing that no law could take effect without the concurrence of the prescribed majority of the Members of both Houses, the Framers reemphasized their belief that legislation should not be enacted unless it has been carefully and fully considered by the Nation’s elected officials.

o The presidents participation in the legislative process was to protect the executive branch from congress and to protect the whole people form improvident laws.

o Division of the congress in 2 distinctive bodies assures that the legislative power would be exercised only after opportunity for full study and debate in separate settings.

When the framers intended to authorize wither House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action.

4 provisions in the constitution, explicit and unambiguous, by which one house may act alone with the un-reviewable force of law, not subject to the President’s veto:

(1) power of the house to initiate impeachments(2) senate’s power to conduct trials on impeachment charges(3) senate’s power over presidential appointments(4) senate’s power to ratify treaties.

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White – Dissent Court should have decided the case on the narrower grounds of separation of powers – leaving for full consideration the constitutionality of other

congressional review statutes operating on such varied matters as war powers and agency rulemaking Congress shouldn’t have to choose between delegating and having no power or not delegating at all.

o One house veto is a useful creation – it rebalances the power. Congress is much more conscious of delegating authority, because once it does:

o It takes a 2/3 super majority of both houses to get the majority back, because president can always veto the attempts to get the authority back.

Political safeguards of federalism – congress will delegate less, make less laws, leave more to the states.

Supremacy Clause: o Constitution – amended only by Art. V = House & Senate & Stateso Laws – Art. I = House & Senate & Presidento Treaties – Art. II = President & Senate

Senate was designed to be a crucial actor in the federal government, they are involved in all forms of federal law making. o They have a veto in all forms of law making, that is recognized by the supremacy clause. o Giving the role in every procedure gave the states through the senate a voice in the process.

Our view of separation of powers not only reflects upon the constitutional separation of powers on the federal level? how do procedures reflect upon the balance of power b/w the federal government and the states?

o If congress can delegate broad authority to the president – then president can bypass above procedure and bypass the senate. o Court is willing to grant lee weigh – Whitman

But here in Chadha they take a strict approach.

Whitman – when power is delegated to president they get executive power, not legislative power. o Hard time drawing line b/w executive and legislative powero Unless it’s egregious crossing of the line – court has a hard time saying that the line was crossed.

Chadha – when congress delegates power to the house - there is no similar problem – they cannot execute the law. o The house cannot exercise judicial powero The only power than house can exercise is legislative power – o Therefore, court says you delegated power to the house

If it’s executive power, it’s unconstitutional If it’s judicial power – house can’t supervise the judiciary.

It must be legislative power that the house is exercising – H+S+P o This is the only way and it’s unconstitutional as well because they didn’t follow procedure.

Judicial power that is similar to line item veto: Severability Doctrine – whether the invalid provision is severable from the valid provision:

o If yes – sever invalid provision and continue to enforce valid provision. o If no – they courts will invalidate the entire statute.

Congress cannot reserve powers outside of legislative branch other than bicameralism Art. I, §7.

CLINTON V. NEW YORK Line Item Veto Act gave President power to cancel 3 types of provisions in a law (dollar amounts for budget, direct spending, or tax benefits); he has 5 days after the law is passed to cancel; Court strikes down the Act because it gives President lawmaking power to alter laws after they have been passed The Act violates the Presentment clause because it lets the President veto after the bill has been signed into law and it allows the President to veto

part of the bill The Act would have been valid if it allowed the President to “decline to spend” funds instead of allowing him to cancel a spending provision

altogether The argument supporting the Act is that it is practical to allow the President to do this because otherwise he would have to veto the entire huge bill

because of a single small spending provision As it stands now, when President gets a bill from Congress, it is “all or nothing”; he can sign whole bill, or veto whole bill Some states authorize the governor to exercise line item veto – Here they wanted to authorize the president to do so as well. Line Item Veto Act gives the President the power to “cancel in whole” 3 types of provisions that have been signed into law:

(1) any dollar amount of discretionary budget authority(2) any item of new direct spending(3) or any limited tax benefit

He must determine, with respect to each cancellation, that it will. (i) reduce the federal budget deficit(ii) not impair any essential governmental functions(iii) not harm the national interest

Concurrence/Dissent - Scalia = “The title of the Line Item Veto Act, which was perhaps designed to simplify for public comprehension, or perhaps merely to comply with the terms of a campaign pledge, has succeeded in faking out the Supreme Court.

o The President’s action it authorizes in fact is not a line-item veto and thus does not offend Art. I, §7,

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o and insofar as the substance of that action is concerned, it is no different from what congress has permitted the president to do since the formation of the Union.”

CONGRESSIONAL INTERFERENCE WITH EXECUTIVE POWERS Appointment Clause in Art. II § 2 says that President, with consent of Senate, shall appoint Ambassadors, Supreme Court Justices, and other

principal officers (Principal officers are top level officers such as Attorney General or Secretary of State) Congress can give the power of appointment of inferior officials to the President, the judiciary, or the heads of departments (i.e. Cabinet officials) Congress cannot make appointments of inferior officials itself Appointments Clause is silent on removal

APPOINTMENT OF EXECUTIVE OFFICERS

Art. II, §2, cl.2 – The Appointments Clause – provides that the President “shall nominate, and by and with the Advice and consent of the senate, shall appoint Ambassadors, judges of the supreme court, and all other officers of the U.S., whose appointments are not herein otherwise provided for, and which shall be established by law: but the congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments.”

o This clause specifies that the president shall appoint superior officers with the advice and consent of the senate. o But the clause allows congress to vest appointment of inferior officers in either the president acting solo, the heads of departments,

or the “courts of law”.

BUCKLEY V. VALEO Congress set up Federal Election Commission and allowed itself to appoint a majority of the FEC’s members; Court struck this down because the members of the FEC were given executive power, and Congress had no constitutional right to appoint executive officers Court held that powers of FEC could be exercised only by “officers of the U.S.” appointed in accordance with the Appointments Clause. Since only “officers” appointed in the constitutionally prescribed manner could undertake executive or quasi-judicial tasks, the FEC could not

exercise such functions. Congress still tries to reserve for itself appointment of executive officers, but it can’t.

REMOVAL OF EXECUTIVE OFFICERS

Appointments Clause is silent as to removal of executive appointees from office. The only explicit constitutional reference to the removal of executive personnel lies in the impeachment provisions. But from the outset, a power to remove subordinate executive officials by routes other than impeachment has been assumed. Always been thought that president has the authority to fire or remove inferior officers or executive officers if he thinks they are not doing a good

job.o Where does the power come from?

Power comes from Art. II, President is in charge of carrying out the executive power. If officer is exercising executive power – the President as head of executive branch, the president can remove that person

in furtherance of his execution of powers.

BOWSHER V. SYNAR Congress passed act that allowed Comptroller General to make suggestions to the President on how to cut spending in the budget; the President was required to issue an order mandating the budget reductions specified by the Comptroller General; problem is that Congress had right to remove Comptroller General; this act gives the Comptroller General executive powers, and an officer removable by Congress is an agent of Congress and cannot have executive powers; Court invalidates act Bowsher stands for the idea that Congress cannot reserve the right to remove an executive officer for cause. This case Stands for alternative

separation of power principles If Comptroller General’s power was seen as legislative, there would be also be a problem because of the lack of Art. I § 7 procedures

(bicameralism & presentment) Buckley prevents Congress from appointing executive officers, while Bowsher prevents Congress from removing executive officers By placing the responsibility for execution of the Act in the hands of an officer who is subject to removal only by itself, congress in effect

has retained control over the execution of the act and has intruded into the executive function. o The constitution does not permit such intrusion.

This is Unconstitutional b/c: (1) Art. II Problem (if it is executive power) (Take Care Clause Problem) Interferes unconstitutionally with president’s duty to ensure that laws

are executed. o It interferes with ability of the president to faithfully execute the laws – prevents president from removing officer given the

authority. o President can’t tell the comptroller what to do and cannot remove him to induce the comptroller to do what the president says.

(2) Allows congress to control the execution of the laws. o If the comptroller general is answerable to congress, because congress can remove him, o and if the comptroller is exercising executive power, then congress is controlling the execution of the laws. o This is a separation of powers problem, congress is not responsible for executive power, only legislative power.

(3) Chadha Problem – Not following Art. I, §7 if it is legislative power.

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o if congress or a subunit of congress wants to alter legal rights and duties outside legislative branch, it has to follow bicameralism and presentment.

o Congress cannot delegate authority to itself, to less than the entire congress. o But can delegate to the president within the limits of non-delegation doctrine. o Congress here is delegating to an agent of congress – because comptroller is an agent of congress.

FETTERING THE EXECUTIVE REMOVAL POWER

MEYERS V. U.S. (1926) The court held unconstitutional a legislative provision that certain groups of postmasters could not be removed by the President without the consent of the Senate. Found that it was a “reasonable implication” from the President’s power to execute the laws that “he should select those who were to act for him

under his direction in the execution of the laws.” Additional plausible implication that “as his selection of administrative officers is essential to the execution of the laws by him, so must be his

power of removing those for whom he can not continue to be responsible.” To faithfully execute his powers, he has to be able to discipline his officers. Later court determined that the President could not remove a member of an independent regulatory agency in defiance of restriction in the

statutory framework.

HUMPHREY’S EXECUTOR V. UNITED STATES When a federal appointee holds a quasi-judicial or quasi-legislative role, Congress may limit or completely block the President’s right of removal opinion found that the FTC Act specified the causes for removal of commissioners and held that , in view of the functions of the agency, congress

could limit the president’s power of removal. o Meyer’s principle limited to “Purely executive officers”.

Allowed congress to limit presidential removal power to specified causes. o With respect to FTC – because it wasn’t a core executive agency.

Independent agencies – independent b/c congress specifications that president does not have complete removal authority. They have protection from removal.

Congress can limit or specify term of office and then limit removal to specified causes (good cause shown, or malfeasance, dereliction or duty, etc.)

Independent agencies fit into the all 3 branches (they right regulations, issue rules, enforce the rules and then adjudicate the rules – application of rules to certain people) with respect to the separation of powers.

o Probably fit mostly in the executive branch – because they can’t really be in the other 2 branches (congress Art. I, §7, not judicial b/c power is exercised only by judges with life tenure and salary protection – and they have no such protection).

o Then – what degree of control does the president need over these executive agencies.

INDEPENDENT COUNSEL

Created by congress by law - Idea was that president should not be able to control investigation of high rank executive officials b/c of potential conflict of interest.

MORRISON V. OLSEN Ethics In Government Act allowed for the appointment of an independent counsel; if the AG received information that warranted further investigation into violations of criminal law by a high-ranking official, the AG was supposed to ask for the appointment of an independent counsel by a special panel made up of three judges; once the independent counsel is appointed, the AG turns over all investigating powers; question was if this was const. because it seemed like the independent counsel was an executive officer that was not under the full control of the President; Court holds that the Act is ok; the Act gave the Executive Branch sufficient control over the independent counsel; the AG could remove the counsel for good cause Rule from Morrison is that Congress may limit the President’s right to remove even a purely executive inferior officer, so long as the removal

restrictions are not of such a nature that they impede the President’s ability to perform his constitutional duty Scalia dissents in Morrison, saying that the President must retain complete control over the executive functions of the government and this Act

takes some of that control away

INTERBRANCH APPOINTMENTS

MISTRETTA V. UNITED STATES Congress sets up US Sentencing Commission; it gives power to appoint the members to the President, with the advice of the Senate; 3 of the 7 members had to be federal judges selected from a list; President could remove the members for good cause; Commission promulgated sentencing guidelines; Court allows this, seeing no problem with Judicial Branch determining guidelines, a typical legislative function; this was a proper delegation by Congress In cases specifically involving the Judicial Branch, we have expressed our vigilance against two dangers:

(1) that the Judicial branch neither be assigned nor allowed ‘tasks that re more appropriately accomplished by other branches,’ Morrison, and (2) that no provision of law ‘impermissibly threatens the institutional integrity of the Judicial Branch.’

The principle of separation of powers does not absolutely prohibit Article III judges from serving on commissions such as that created by the Act.

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o Marbury v. Madison – Both serving as secretary of state and chief justice. o There is no clause in constitution that says you can’t be on both the judiciary and executive.

The Sentencing Commission is devoted exclusively to the development of rules to rationalize a process that has been and will continue to be performed exclusively by the Judicial Branch. In our view, this is an essentially neutral endeavor and one in which judicial participation is peculiarly appropriate.

We simply cannot imagine that federal judges will comport their actions to the wishes of the President for the purpose of receiving an appointment to the Sentencing Commission.

Scalia’s dissent says that this is an example of Congress delegating pure lawmaking power to a nonlegislative body Sentencing commission is like a junior varsity congress

o It does nothing but legislate and this is unconstitutional if not tied to legislative power.

Sentencing commission exercises legislative power when it promulgates binding guidelines (may have problem with non-delegation.) If it were executive it would be a Chadha problem Procedural – courts should be able to handle it themselves?

o Procedural rules are more susceptible to judicial promulgation than substantive rules under separation of powers. Judiciary has inherent authority to promulgate rules of procedure for themselves – susceptible to congressional legislation. Rules of practice and procedure are part of courts territory.

EXECUTIVE PRIVILEGES & IMMUNITIES Presidents have invoked what they described as the doctrine of “executive privilege” to justify their refusal to disclose information which they

claimed to be confidential

UNITED STATES V. NIXON Subpoena ordered President Nixon to turn over tapes associated with the Watergate scandal; the President refused, claiming executive privilege; Court upholds the subpoena, saying that it the Court, not the Pres., that decides if a privilege exists Court in Nixon said that when there is a general privilege claimed, it is a qualified privilege; here, the privilege was outweighed by the need to

develop relevant facts in a criminal trial Court said that a privilege needed to protect military, diplomatic, or sensitive national security secrets will not be questioned Court said that there will be a presumptive privilege given to the President and the other side will have to overcome that presumption

Presidents 3 arguments: He is not subject to judicial process He should have absolute privilege Only presumptive privilege it should cover this case

Claim of Privilege: (1) Claim that the subpoena should be quashed b/c it demands “confidential conversations b/w a president and his close advisors that it would be inconsistent with the public interest to produce.”

o Protecting state secrets, foreign relations matters, commander in chief First contention is a broad claim that the separation of powers doctrine precludes judicial review of a president’s claim of privilege. (2) contention is that if he does not prevail on the claim of absolute privilege, the court should hold as a matter of constitutional law that the privilege prevails over the subpoena duces tecum.

The president’s need for complete candor and objectivity from advisors calls for great deference from the courts. o However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such

conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept

the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in cameral inspection .

Conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality; it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.

Case important b/c: It limits the power of the president/ authority Supreme Court recognizes a broad presumptive privilege for confidential communications.

o Absolute privilege for diplomatic, military issues… Court does not address separate case of civil litigation.

o Or congressional demands for information

Adopts functional balancing approacho How much does court need info?o How much does president need confidentiality?

In Chadha takes more of a categorical approach.

Unless congress follows the procedures it can’t enact a law that is the supreme law of the land that preempts state law.

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o Strict adherence to procedures is the way to divide power Congress is incapable of exercising all its power b/c of constraints by federal law making procedures.

o This leaves state more freedom to govern.

Can’t take formalistic Chadha approach b/c the authority rests in 1 person: Inherently there is a check on this person.

Checks built into the constitution check the authority of certain branches o Have checks inherent in certain parts of constitution.

In independent counsel law – congress may have been adding one extra check to check presidential abuse.

Federal government has grown, and so has presidential powero Consequence of the structure and making the president the chief executive officer. o Don’t have the same balance of power that we once had.

The Scope of executive privilege – in the Nixon case, the court ruled both that the President was subject to court orders issued in the course of criminal proceeding and that his presumptive executive privilege did not bar compliance with the subpoena.

PRESIDENTIAL IMMUNITY FROM CIVIL DAMAGES LIABILITY

NIXON V. FITZGERALD Nixon asserted executive privilege after he left office with respect to his presidential papers; Court held that a President is absolutely immune from civil damages for his official acts There is no executive immunity from a criminal prosecution Court held that “the President is absolutely rather than qualifiedly immune from civil damages liability for his official acts” – at least “in the

absence of explicit affirmative action by Congress.

CLINTON V. JONES Jones claimed that Clinton made illegal sexual advances to her while he was Governor of Arkansas; Jones sues when Clinton is President; Clinton argued that he should have “temporary immunity” while he is in office; Court rejected this claim; Court said there was no policy rationale for allowing immunity for unofficial acts, including acts before the President was in office Clinton stands for the idea that there is no immunity, not even a qualified immunity, for acts that the President takes that are completely

unrelated to the carrying out of his job Court in Clinton responded to the argument that the President can’t be interrupted with suits by saying that the FRCP have methods for dismissing

frivolous suits and the District Courts will make sure to minimize the amount of time that the President has dedicate to the suit Can the President be indicted for criminal charges while in office? While there is no constitutional answer, a strong argument can be made that the Constitution’s provision for impeachment as the means of

removing federal officers bars prosecution of such officials until after they have been removed from office If the President was indicted while in office, does that mean he could pardon himself? The standards for impeachment are set out in Art II § 4 The House needs a majority to impeach, and then a 2/3 vote in the Senate is needed to convict The standard for impeachable offenses is “high Crimes and Misdemeanors” It is unclear what this means; some feel President can only be removed for committing crimes, while others feel that President can also be removed

for abuse of power It is not clear if the Court could review the Senates impeachment conviction The traditional view is that this is a non-justiciable political question (see Nixon v. US) The contrary view is that Court may review to determine whether an adequate definition of “high Crimes and Misdemeanors” was applied

IMPEACHING THE PRESIDENT:Andrew Johnson Removed secretary of war without congress’s permission and was almost impeached. His view was vindicated later in Meyers case. Escaped conviction and removal by one vote. Is that a high crime or misdemeanor? Constitution makes it difficult to convict and remove the president.

William Jefferson ClintonImpeached by the House, not by the senate. Majority vote saved him. High crimes and misdemeanors – is that perjury for a personal offense, having nothing to do with the presidency. High crimes and misdemeanors is an interpretation of the constitution-

Walter Nixon v. U.S.Political question doctrine – justiciability – impeachment is a nonjusticiable political question.

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After Clinton – problem of Independent counsel was brought up again. The way law was brought up – it needed to be brought up ever 5 to 7 years.

o In 1999 the Independent Counsel Law was not renewed for the first time. o Independent Counsel Law does not exist now.

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